Abstract

This guideline is intended to assist fire officials in dealing with issues involving an immediate threat to life, authorization to close a building and with the development, preparation and service of various types of orders which may be issued under the authority of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4., as amended. The guideline also provides some useful information relating to some of the technical issues that should be taken into account in any fire safety inspection program. The guideline is intended for guidance only and not to be a statement of law in this area.

1.0 BACKGROUND

Part VI of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, (FPPA) contains authority for designated fire officials to enter and inspect properties. There are a variety of enforcement or remedial options that may be implemented by the fire official when they encounter fire safety hazards or Fire Code violations. The option selected depends upon the nature of the fire safety hazards that are identified and the fire department’s established inspection protocol. When circumstances warrant issuing an order, or implementing measures to reduce or eliminate the fire hazard, the fire official must adhere to the provisions outlined in the FPPA. For guidance on fire safety enforcement, refer to the Office of the Fire Marshal guideline “Fire Safety Enforcement”.

The FPPA contains provisions where an inspector may issue one or more of the following orders, where deemed to be appropriate:

• Inspection Order
  

• Order to Close
  

• Order to Pay Costs
  

• Electrical Inspection Order

The guideline also provides useful information relating to issues involving an immediate threat to life from fire, steps to take to close a building and relevant information relating to each type of order that may be issued under the FPPA.

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


2.0 SITUATIONS INVOLVING AN IMMEDIATE THREAT TO LIFE

Section 15 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 (FPPA) contains provisions for dealing with serious situations involving an immediate threat to life. When there are reasonable grounds to believe that a risk of fire poses an immediate threat to life, the FPPA permits the Fire Marshal, an assistant to the Fire Marshal, or a fire chief to enter the land or premises without a warrant or other authorization for the purpose of removing or reducing the threat.
In applying Section 15, where an assistant to the Fire Marshal has encountered a situation where he/she believes that circumstances pose an immediate threat to life, the measures that can be taken are generally temporary, readily implemented and limited in scope. As outlined under Clauses 15 (1) (a) to (g) in the FPPA, the assistant to the Fire Marshal may:
            a. remove persons on the land or premises;
            b. post a fire watch;
            c. remove combustible or explosive material or anything that may constitute a fire menace;
                (Materials removed may be disposed of, provided the process for disposal coincides
                with the provisions outlined in the Fire Marshal’s directive relating to this subject. A
                copy of the directive is provided for reference in Appendix C.)
            d. eliminate ignition sources;
            e. install temporary safeguards, including fire extinguishers and smoke alarms;
            f. make minor repairs to existing fire safety systems;
           g. do any other thing that the Fire Marshal, an assistant to the Fire Marshal or a fire
               chief has reasonable grounds to believe is urgently required to remove or reduce the threat
               to life.

Under the provisions of Clause 15 (1) (g), the fire service has been given a measure of discretion in deciding what action should be taken. If the actions specified in Clauses (a) to (f) of Subsection 15 (1) are not adequate to reduce the threat to life, the officer may undertake different work. The measures selected to reduce the threat to life must be in line with the measures specified in the FPPA; that is, they should be temporary, readily implemented and limited in scope.

Before taking action under Section 15, it must be established that an immediate threat to life exists. An immediate threat to life must involve a determination that two elements exist as follows:

         a. a risk of fire, and
         b. that human life would be placed at serious risk.

The first critical element that must be established when determining that a threat to life is imminent involves identifying a risk or probability of fire. A risk of fire involves combining the elements of an ignition source in close proximity to combustibles. Loose electrical connections in the vicinity of a flammable vapour, is an example of conditions that pose a risk of fire.

Determining that human life would be placed at serious risk if a fire were to occur is the second crucial factor that must be confirmed when verifying that conditions pose an immediate threat to life. An apartment building with an inoperative fire alarm system or obstructed exits is an example of a situation where human life would be placed at serious risk if a fire were to occur.

There may be situations where the fire department is notified of serious circumstances (an identified person lodges a detailed complaint) that may lead the assistant to the Fire Marshal or the fire chief to believe that there is an immediate threat to life. The fire official may consider that based on the source of the information, he/she has reasonable grounds to enter the subject property without a warrant to confirm that the circumstances do in fact pose an immediate threat to life. In exercising such authority the fire official must have confidence in the source of the original information.

In another example, an assistant to the Fire Marshal intends to use the provisions of Section 15, when confronted with a rave party organized to occupy the second storey of a building that was never designed for use as a place of assembly. The building has inadequate egress facilities including an insufficient number of exits, inadequate access to exits, exits are not fire separated, the building lacks emergency lighting, fire protection features, a fire alarm system, and the interior finish, decorations and waste and debris are present which are readily combustible. In consideration of these conditions, the assistant to the Fire Marshal believes that should a fire occur, human life would be at serious risk. Regarding a condition involving a risk of fire, the assistant to the Fire Marshal believes that people attending the rave and/or organizing the function could introduce ignition sources that could result in a fire. Introduced ignition sources could include careless smoking, electrical wiring hazards where provisions are quickly made to accommodate music and special effects lighting, and there is a remote possibility of arson with or without intent to injure a person or persons attending.

Once conditions are identified that make the building especially liable to fire and endanger persons therein, the fire service can enter the land or premises and can take immediate action to remove or reduce the threat. The person undertaking the work must conduct his/her activities in accordance with Subsections 15 (2) to (5) and Sections 16 and 17 of the FPPA.

The person who enters on the land or premises to carry out the work may call on police officers and use force as necessary to make the entry. In addition, they have authority to call on any other persons he or she considers advisable to assist.

On the request of the owner or occupant of the land or premises, the person who enters under the provisions of Section 15 shall identify themselves and shall explain the purpose of their entry.

Under Subsections15 (2) and (3), the person doing the work shall promptly, after carrying out the work, give notice to the owner and post a copy of the notice on the land or premises. The notice must contain the information specified under Subsection 15 (4). A sample “Immediate Threat To Life Notice” form can be found in the Appendix to this guideline for fire department use. Fire departments are encouraged to make photocopies of the blank form for future use.

The fire official may initiate a process to recover the costs for undertaking the work by issuing an order to pay costs in accordance with Part VIII of the FPPA.

Where it is felt that implementing the corrective measures permitted under Clauses 15 (1) (a) to (g) will not adequately address the immediate threat to life, the fire official should contact the Fire Marshal or his/her designate to examine the possibility of ordering the land or premises closed, and if necessary actually cause the land or premises to be closed immediately. Ordering the closure, or initiating immediate closure of lands or premises can only be undertaken with the approval of the Fire Marshal in accordance with Subsection 21 (2) of the FPPA. Refer to Section 5.0 of this guideline “Preparing And Issuing An Order To Close”, and Section 7.0 “Taking Measures to Close a Building” for information on these subjects.

3.0 FORMS

The following two-sided forms can be found in the Appendix B of this guideline:

• Immediate Threat to Life Notice
  

• Inspection Order
  

• Order to Close
  

• Order to Pay Costs
  

• Electrical Inspection Order (English and French versions)

Fire departments are expected to make photocopies of the two-sided forms for future use.

Alternatively, a Microsoft Word version of the forms may be obtained through e-mail by telephoning the Fire Safety Standards Section at (416) 325-3227.


4.0 PREPARING AND ISSUING AN INSPECTION ORDER

4.1 General Instructions

Section 21 of the FPPA allows an inspector discretionary authority to issue an Inspection Order. Sound judgment must be used when issuing a discretionary order. The Inspection Order form is intended to be used only when applying discretionary authority under Clauses (a) through (g) of Subsection 21 (1) of the FPPA.

An Inspection Order should not be issued if the situation can be corrected by enforcing a provincial statute or regulation, and it is not to be used to enforce a municipal by-law or zoning requirement. For example, where the Fire Code prescribes specific criteria for compliance, a discretionary order should not be used. Under these circumstances the requirements outlined in the Fire Code are intended to be enforced.

An Inspection Order should only be issued when all other avenues have failed to remedy the fire safety concerns. The term “fire safety” is defined under Section 18 “… fire safety includes, 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.”

Once the Inspection Order is issued, the fire department is responsible for following up on the order to ensure compliance has been attained. In order to attain compliance, prosecution may become necessary. The fire department is also responsible for following up on any orders which were issued initially by them and subsequently modified or upheld by the Fire Marshal or the Fire Safety Commission upon appeal.

An improperly completed form could result in an unsuccessful prosecution, or the order being modified or rescinded upon appeal.

Once an Inspection Order has been prepared and served, the inspector should forward a copy of the order to their respective Regional Office of the Fire Marshal for review and recording purposes.

4.2 Situations Where Inspection Orders Not Permitted

Subsection 22 (1) prohibits an inspector from making an order under Clause 21 (1) (b) of the FPPA requiring structural repairs or alterations to a building, structure or premises that was constructed in compliance with the Building Code established under the Building Code Act, 1992 or under a predecessor to that act and that continues to comply with that code as it existed at the time of construction, unless the order is necessary to ensure compliance with the provisions of the Fire Code relating to the retrofitting of existing buildings.

4.3 Inspection Orders Not To Be Used To Remedy Certain Fire Code
Violations

An Inspection Order may be used in situations where a violation involves a provision of the Fire Code that allows for discretionary alternatives to comply and the Chief Fire Official wishes to afford the owner the right of appeal. An Inspection Order should not be used to remedy a Fire Code violation where the regulation is specific.

The rationale behind this practice recognizes that whenever an order is issued, the order may be appealed. Any appeal will result in the order being "stayed". When an order is "stayed", the person served the order does not have to comply with the order pending the outcome of the review or appeal. This results in a delay. For example, if an order is used to address a specific requirement which does not permit discretion, time and resources will be wasted bringing such issues before the Fire Marshal and Fire Safety Commission. This direction is consistent with the knowledge that the Fire Protection and Prevention Act, 1997, as amended, does not provide authority for the Fire Marshal or the Fire Safety Commission to relieve an owner from complying with a requirement of the Fire Code. As a result, prescriptive non-discretionary requirements of the Fire Code are not subject to review or appeal.

Fire Code violations can be readily prosecuted without notice and the fines imposed upon conviction may be cumulative based on the number of violations being prosecuted.

4.4 Situations Involving Environmental Concerns

An Inspection Order may be issued in situations involving an environmental matter where once started, the effects of a fire would seriously endanger the health or safety of any person or the quality of air, water or land. This portion of the FPPA is intended to apply to uncontrolled burning situations where the risk of a fire occurring may be low, however should a fire occur, the results of the fire would have a serious impact on the environment.

Prior to issuing an order involving the environmental provisions of the FPPA, it is important to understand some basic principles and the intent of the legislation. If you have any questions or wish assistance in this area, contact the Regional Office of the Fire Marshal serving your area.

This portion of the FPPA is intended to apply to uncontrolled burning situations (e.g. accidental or incendiary type fires) as opposed to situations involving controlled burning (e.g. combustion processes in incinerators, boilers, fuel-fired heaters, and processing operations). A controlled burning process may be treated as an uncontrolled burning process in the absence of proper safeguards.

The use of this portion of the legislation is not appropriate where other specific legislation can be applied to attain corrective action.

In applying this portion of the FPPA, the fire safety risk and the magnitude of the potential release of products must be considered in conjunction with the environmental impact of the products on air, water, land or life.

Air
This legislation will normally apply where combustion products resulting from an uncontrolled fire would consist of other than ordinary products of combustion. Ordinary products of combustion result from burning of materials such as wood, textiles, paper, etc.. Such products of combustion consist of the following: oxides of nitrogen, sulphur, hydrogen, carbon and trace quantities of other materials.

For example, a fire involving a chemical waste handling storage facility may be expected to produce products of combustion that would not be considered ordinary products of combustion.

Water
This legislation will normally apply where as a result of fire, the discharged effluent (which could include spilled products, fire fighting run-off, and/or airborne contaminants) could:
               a. contaminate a source of potable water;
               b. seriously endanger human, animal or aquatic life; or
               c. enter any water course or sewer system.

Land
This legislation will normally apply where as a result of fire, the discharge effluent (which could include spilled products, fire fighting run-off, and/or airborne contaminants) could:
               a. seriously endanger the quality of neighbouring or other property; or
               b. render land unfit for any use that can be made of it. NOTE: For the purposes of this
                  guideline, “any use” means the use that is currently being made of the land. For
                  example, land being used for agricultural purposes would have to remain fit for
                  agricultural use. On the other hand, land used for commercial purposes would have
                  to remain fit for commercial use.

Life
This legislation will normally apply where as a result of fire, the health or safety of people in surrounding neighbourhoods would be seriously endangered.

The environmental provisions of this legislation normally do not apply to the following:
               a. Where as a result of fire, the products of combustion consist
                   principally of the
                   ordinary products of combustion described previously.
               b. To vehicles involved in transportation such as trucks, railway cars,                    aircraft, ships,
                   barges, etc.. NOTE: The legislation would apply to vehicles used for                    temporary or
                   permanent storage.
               c. To crown (both provincial and federal) property (this does not prohibit                    attempts to
                   resolve problems of this nature in these properties). NOTE: The                    legislation would
                   apply to municipal property.
               d. To nuclear facilities under the Nuclear Liability Act.
               e. To persons who are familiar with the hazards associated with                    responding to
                   abnormal operation or emergency conditions such as fire department                    personnel or
                   employees trained and equipped to respond.
               f. Where it can be demonstrated that any contaminants resulting from a                    fire that would
                   seriously endanger the environment would be confined to the area and                    restoration of
                   the environment can be attained without impact on neighbouring or                    other property.

4.5 Step-By-Step Instructions And Related Information

For guidance on completing an Inspection Order form, refer to the instructions below and the corresponding sample Inspection Order in Appendix A.

Lines #1 to #3
Insert name, address and phone number of fire department or Office of the Fire Marshal, (whichever is applicable) based upon who is preparing the order.

Line #4
Prior to issuing the order, determine who will be responsible for carrying out the provisions of the order. This is often the owner, however in some situations the occupant may be responsible. It is also possible for the owner and occupant to be jointly responsible.

Where the legal owner of the property is considered to be responsible for the situation outlined in the order, it is imperative that the owner be properly identified on the order. This is necessary because the municipality or the province may ultimately place a lien against the property in an attempt to recover costs under the provisions of Part VIII of the FPPA for carrying out work authorized under Section 33. Determining ownership can be accomplished by conducting a title search at the Land Registry Office serving the area.

Where it is difficult to identify the owner of the property, fire departments should exercise caution to ensure they are issuing the order to the party responsible for/or in control of the property. Legal advice should be obtained by the fire department to deal with properties that are in receivership.

The practice of issuing an order against a mortgage holder would ordinarily be considered improper. A mortgage holder is not considered responsible for/or in control over a property simply because the subject property is used to secure a loan. In situations where, for example, a lender has exercised a right under a mortgage agreement or other security instrument when an owner has defaulted, the fire department should first obtain legal advice as to whether the exercise of the right has resulted in the lender having control over the property.

The practice of issuing orders to a variety of parties, including lenders, trustees and receivers, in the hope that one of the several parties will be the correct one, is inappropriate.

Enforcement action requires compliance with prevailing legal requirements. Inspectors who do not have a reasonable and genuine belief that a person or institution is an “owner” or “in control of the property” but who still prepare and issue orders may leave themselves open to formal legal proceedings.

To complete Line #4 of the form, where the owner or responsible party is an individual, enter the full name and address of the person against whom the order is made. In instances where two or more individuals are being named, it is suggested that separate orders be prepared and served on each individual. In the case of a partnership, enter the names and addresses of the partners in this space and attach an appendix to the order if necessary.

In the case of a corporation, enter the name and address of the head office or branch office as applicable. A separate order could also be prepared and issued to an executive officer of the company in addition to issuing one to the company itself. This is often a useful approach, due to the personal nature of the order. An executive officer could be subject to penalties upon conviction for failure to comply with an order as outlined in Section 30 of the FPPA.

In the case of an estate, enter the name of the estate and name of the executor or administrator. Include the address of the executor/administrator.

In the case of a property administered by a trust company, enter the name of the estate and the trust company. Specify that the company administers the estate. Include the address of the trust company.

Line #5
Enter “owned” and/or “occupied” as applicable.

Line #6
Enter the type of building or premises that best describes the use (e.g. apartment building, office building, single family dwelling, etc.).

Line #7
Enter the name of the municipality. A city, separated town, town, borough, township, village and improvement district are municipalities. Hamlets and police villages are not municipalities.

Line #8
Enter the street address where applicable. If not applicable, give the plot plan or lot number.

Line # 9
Enter the date on which the building was actually inspected. Should prosecution become necessary, evidence will have to be presented at the trial, outlining what the conditions were like at the property prior to the order being issued and on subsequent re-inspection.

Line #10
Section 23 requires the reasons for the order to be specified in the document. List the reasons for the order in the space following “The reasons for the order are:”

The inspector must describe the fire safety problems in detail in order to ensure that there is sufficient evidence to substantiate the remedial measures outlined in the order.

The lack of a fire alarm system, emergency lighting, fire extinguishers and other fire protection equipment does not in itself constitute a fire safety hazard. Rather, the equipment is used to alleviate the unsafe conditions found. For this reason, do not use wording such as: “The building lacks a fire alarm system” (or other equipment).

The following examples illustrate suitable wording that can be used:
       “The building lacks a means to alert the occupants of a fire emergency.”
       “The building is vacant, in disrepair, open to unauthorized entry, and contains         quantities
        of combustible materials.”
       “In event of fire, the open stairwells will contribute to the spread of smoke and         fire.”
       “The basement contains excessive quantities of combustible waste and         debris.”

If the space provided in the order is not sufficient to accommodate the list of fire safety problems, use an appendix. In such situations, enter “See Appendix A”. Prepare a detailed Appendix A and attach it to the order.

Line #11
The authority for issuing this type of order is stated in Clauses (a) to (g) of Section 21 of the FPPA. Specify the applicable Clause(s) depending upon the circumstances involved in the order.

Line #12
In the space provided below “it is ordered that”, state the required action, including specific details to clarify how to comply with the order. Note that the corrective measures specified in this space must fall within the scope of Clauses 21 (1) (a) to (g) of the FPPA.

An owner may propose an alternative to what is specified in the order. If the fire department agrees with the alternative, they may withdraw the order and make a new order. The new order should describe the provisions of the new agreement.

In instances where the order will involve construction, a building permit may be necessary. This may be identified on the order.

If the space provided on the form is insufficient to contain the instructions necessary for compliance with the order, it is possible to reference an appendix. In such situations enter, “See Appendix A”, or any other letter depending on the circumstances. Prepare a detailed appendix and attach it to the order.

Line #13
Specify a date by which the work must be completed. Depending on the extent of work required by the order, allow adequate time. For instance, it may be necessary to prepare plans, specifications, tender the job, obtain permits in addition to the time necessary for the installation. Be reasonable.

When more than one item must be satisfied and it is necessary to set different time limits for compliance, issue separate orders.

In situations where the compliance date on the order is less than 15 days, it will be necessary to defer prosecution pending the application for a review or an appeal. In other words, there is no requirement to match the appeal or review period with the compliance time lines. For example, if the matter is urgent, you may require compliance immediately or within a few days but the 15 day appeal period specified in the FPPA would still apply.

Part III of the Provincial Offences Act contains a six month statute of limitations for prosecuting a provincial offence based from the compliance date used in the Inspection Order. By giving reasonable time initially, there is sufficient time available for compliance. Should it become necessary to prosecute for failure to comply with the order, the person upon whom the order was served will have difficulty supporting a defense that they had insufficient time and were taking steps to comply.

Line #14
The inspector who conducted the inspection should print their name and sign the order in the spaces provided.

Lines #15 and #16
Section 77 of the FPPA identifies criteria for the manner in which an order is required to be served. Refer to Section 77 of the FPPA for details.

At the time of service, complete this portion of the order on both the original order being served and the fire department copy being retained for record and other purposes. Document the method of service, by checking off the appropriate box, be it personal service, by regular letter mail, electronic transmission, facsimile transmission or other.

Where electronic transmission or telephone facsimile transmission is used to accomplish service, ensure that both sides of the order are transmitted (i.e. the face of the order and the rights of appeal information on the back). Retain the proof of transmission. This information is used to determine the appeal periods under the FPPA and may be required to prove that service was accomplished and the evidence is also necessary to prove in court that service was accomplished.

The name of the person to whom the order is served and the date of service must be stated on Line #15.

Personal service is recommended. Service may be made by fire department personnel or by some other means if necessary. The person serving the order should sign their name in the space provided (Line #16) on the original order and on the fire department copy of the order.

Where the order is being served personally by someone other than the inspector who prepared the order, it is suggested that an affidavit of service be provided and be retained for future prosecution purposes. The affidavit of service will be used as proof of service if the matter comes to court.

Refer to Subsection 24 (1) of the FPPA which specifies that a copy of the order must be served on both the owner and occupant of the land or premises. The copy of the order must be served to the owner and occupant, even if they are not the parties responsible for compliance with the order.

Refer to Subsection 24 (2) which describes how the occupants of a building are deemed to be served where the building contains two or more units intended for separate occupancy. Follow the procedures as outlined.

As indicated above, in any court prosecution, the fire department may have to give evidence of exactly what has been done to effect service, or may have to swear an affidavit to the same effect. This is a matter that should be established with the local courts in determining acceptance of proof of service.

4.6 Rights of Appeal

Section 23 of the FPPA specifies that an order must contain the right to request a review of the order by the Fire Marshal, or in the case of an order made by the Fire Marshal, the right to appeal to the Fire Safety Commission. The reverse of the Inspection Order form outlines these rights.

IMPORTANT: If for some reason you are serving a photocopy of the order form in lieu of an original, ensure that both sides of the form are copied and served. When posting a copy of the order on a building structure or premise where required to satisfy service of the occupants, the rights of appeal must also be posted along with the front portion of the order.

When serving the order by electronic transmission or by telephone facsimile, the back page portion of the form outlining the rights of appeal must also be transmitted along with the front portion of the form.

4.7 Copy Of The Order To The Local Chief Building Official

Subsection 22 (3) requires an inspector who makes an order requiring repairs, alterations or installations to be made to a building, structure or premises to also provide a copy of the order to the proper chief building official appointed under the Building Code Act, 1992.


5.0 PREPARING AND ISSUING AN ORDER TO CLOSE

5.1 General Instructions

An Order to Close may be issued by an inspector under the provisions of Subsection 21 (2) (a) of the FPPA. This order can only be issued with the approval of the Fire Marshal. Once approved, the Order to Close is issued to the owner or occupant of the premise. Upon receipt of the Order to Close, the owner is expected to comply by taking steps necessary to close the building or property. The Order to Close prescribes the corrective measures that must be complied with before the property can be reopened.

An Order to Close is not to be used in lieu of laying charges under the Provincial Offences Act for violations of the Fire Code. An Order to Close is not to be used when a Notice of Violation or an Inspection Order would achieve satisfactory compliance, or when the fire department has known of the hazard for a considerable time and the conditions have not changed. Under these circumstances it may not be possible to demonstrate the degree of urgency necessary to warrant closure. This however would not preclude a more detailed assessment by the OFM if requested.

Prior to proceeding with an Order to Close, it should be recognised that Sections 15 and 16 of the FPPA may where applicable, provide the fire official another possible avenue to effectively reduce the life safety hazard without having to issue an Order to Close. Temporary or readily implemented measures may be taken by the fire official to immediately reduce the danger to life.
These measures may include:
               a. remove persons on the land or premises;
               b. post a fire watch;
               c. remove combustible or explosive material or anything that may                    constitute a fire menace;
               d. eliminate ignition sources;
               e. install temporary safeguards, including fire extinguishers and smoke                    alarms;
               f. make minor repairs to existing fire safety systems;
              g. do any other thing that the Fire Marshal, an assistant to the Fire                   Marshal or a fire
                  chief has reasonable grounds to believe is urgently required to remove                   or reduce the threat to life.

For more information relating to the subject of an immediate threat to life, refer to Section 2.0 of this guideline “Situations Involving An Immediate Threat To Life”.

It must be emphasised that the Order to Close, once approved by the Fire Marshal, is issued by the municipal fire department under their authority.

Staff of the Office of the Fire Marshal are available to assist the fire service in assessing the hazard, determining the most effective course of action, and collecting the information necessary to substantiate an Order to Close.

Provisions dealing with an Order to Close under Subsection 21 (2) (a) should not be confused with Subsection 21 (2) (b), where the inspector may, with the authorization of the Fire Marshal, take action to cause the lands or premises to be closed. The lands or premises would remain closed until such time as the work outlined in an Inspection Order has been completed. The distinction is to avoid action under 21 (2) (b) from being an “order” which would then be subject to appeal and subject to being stayed on appeal. Section 7.0 of this guideline “Taking Measures To Close A Building” outlines the process for taking measures to close a property under Subsection 21 (2) (b) of the FPPA.

5.2 Conditions For An Order To Close

An Order to Close may be considered when:

• the conditions constitute an immediate fire hazard;
  

• the building is especially liable to fire;
  

• the person responsible for the building is unable or unwilling to alleviate the hazard immediately;
  

• all other reasonable avenues have been pursued to alleviate the hazard, but have proven unsuccessful. This includes consideration of alternative measures; and/or
  

• where applicable, implementing measures under Section 15 would not achieve an adequate level of life safety.

5.3 Steps To Follow When Circumstances Warrant An Order To Close

The following procedures apply when the Office of the Fire Marshal is processing a request for an Order to Close.

a. The assistant to the Fire Marshal must notify the municipal Fire Chief or a senior
    municipal officer of the intent to issue an Order to Close.

b. The fire department must compile all available information supporting the Order to     Close.
      This should include:

• a description of the building (number of storeys, size, construction, age, occupancy, number of occupants, fire safety provisions);
  

• a list of violations of fire safety legislation;
  

• a list of all hazardous conditions;
  

• information identifying conditions that substantiate issuing an Order to Close (immediate hazard, life threatening, and especially liable to fire);
  

• information detailing actions taken by the fire department to alleviate the immediate hazard (contacting the owner, consideration of alternative measures, etc.) and the results of these actions; and
  

• when appropriate, a statement describing the impact of closure on the occupants and the availability of possible alternative accommodation.

c. During normal business hours, the request for approval of the Order to Close     must be directed
    to the Deputy Fire Marshal or Manager of the Fire Safety Standards Section,     located in
    Toronto, Telephone 416-325-3100, Fax 416-325-3213. The request should be     accompanied
    by as much supporting information as possible.

To deal with an emergency of this nature after normal business hours, phone the toll-free
After Hours Assistance Line 1-800-461-2281.

d. The Fire Chief or the chief’s designate must be continuously available until the     situation is resolved.

e. The Fire Marshal may direct OFM staff to attend the property to provide further         information
    regarding its condition and to facilitate the approval process prior to approving the     order.

f.  If the Fire Marshal agrees that an Order to Close is warranted, the order must be    prepared by
   the fire department and then directed to the Fire Marshal for signature. The signed    Order to
   Close will then be returned to the fire department to serve upon the owner and to    post on the
   building in accordance with Subsection 24 (3) of the FPPA.

Transfer of documents between the fire department and the Fire Marshal’s Office may be accomplished using electronic transmission, telephone transmission or a facsimile.

It must be emphasised that the actions of the fire department and the Office of the Fire Marshal must, at all times, reflect the extreme urgency dictated by the situation that warrants considering closure.

5.4 Step-By-Step Instructions And Related Information

For guidance on completing the Order to Close form, refer to the example form in Appendix A. Each line of the order is identified with a reference number in the margin. The numbers correspond with the following step-by-step instructions and related information.

Lines #1 to #3
Insert name, address and phone number of fire department or Office of the Fire Marshal, (whichever is applicable) based upon who is preparing the order.

Lines #4 to #10
Complete these lines using the step-by-step instructions for completing Lines #4 through #10 of the Inspection Order form.

Line #11
In the space below “…it is ordered that the property described above be closed until” state the required action, including sufficient details for the person to understand how to satisfy the order.

In instances where the order involves construction, a building permit may be necessary. This may be identified on the order.

If the space provided on the form is insufficient to contain the instructions necessary for compliance with the order, it is possible to reference an attached appendix. In such situations, enter “See Appendix A” or any other letter depending on the circumstances. Prepare a detailed appendix and attach it to the Order to Close.

Line #12
The inspector who conducted the inspection must print their name and sign the order in the spaces provided.

Line #13
Once the Order to Close has been completed and the Fire Marshal approves, he/she will place their signature in this space.

Lines #14 and #15
Complete these lines using the step-by-step instructions for completing Lines #15 and #16 of an Inspection Order form.

5.5 Rights Of Appeal

Review the information contained in Subsection 4.6 “Rights Of Appeal” of this guideline for more important information on this topic. The same information and rationale applies.

5.6 Copy Of The Order To The Local Chief Building Official

Subsection 22 (3) of the FPPA requires an inspector who makes an order requiring repairs, alterations or installations to be made to a building, structure or premises to also provide a copy of the order to the proper Chief Building Official appointed under the Building Code Act, 1992.


6.0 LIFTING O STAY

Orders are stayed pending the outcome of a review or appeal upon the application for a review to the Fire Marshal, or an appeal to the Fire Safety Commission under the provisions of Subsections 25(6) and 26(7) of the FPPA.

Subsections 25 (7) and 26 (8) of the FPPA permit an inspector to apply to the Fire Marshal or to the Fire Safety Commission (whichever is applicable) to lift the stay. The Fire Marshal or the Fire Safety Commission (whichever is applicable) may order the lifting of the stay provided, they are of the opinion the action is necessary in the interest of public safety.


7.0 TAKING MEASURES TO CLOSE A BUILDING

With the approval of the Fire Marshal, when an inspector is of the opinion that it is necessary for the immediate protection of persons and property that the lands and premises be closed immediately, he or she can cause the land or premises to be closed under the provisions of Subsection 21 (2)(b) of the FPPA. The inspector can cause the persons on the premises to be removed and direct that the lands and premises remain closed and that the premises be vacated until such time as corrective actions ordered under Subsection 21 (1) of the FPPA have been completed.

Where the Fire Marshal agrees, he or she shall issue a written authorization along with such terms and conditions deemed necessary, approving such action to be taken by the inspector. The inspector may take steps to close the property. This may require police or other assistance deemed necessary.

In addition to receiving approval from the Fire Marshal, in order to complete this process, an Inspection Order must be prepared in consultation with the Fire Marshal. The Inspection Order must describe the corrective actions that must be completed prior to the property being reopened. The Inspection Order must be posted on the land or premises and shall be served on the owner of the lands or premises if the owner is in Ontario and his or her whereabouts are known.

It is important to note that expenses incurred for actions taken by an inspector to close a property and to keep the property closed under Subsection 21(2)(b) are not recoverable. Once the inspector has closed the property, it must remain closed until the work specified in the Inspection Order is completed or approved alternatives equal to the provisions outlined in the Inspection Order have been adhered to.

8.0 PROCESS TO RECOVER COSTS AND OTHER CONSIDERATIONS

8.1 General Instructions

Preparing and serving an Order to Pay Costs is the first step which must be taken in efforts to recover costs relating to work carried out under the authority of Section 15 (involving an immediate threat to life) or with authorization given by the Fire Safety Commission under Section 33, for work undertaken resulting from an order made under Subsection 21 (1) or (2) or Sections 25 or 26 of the FPPA.

8.2 Immediate Threat To Life

Section 15 of the FPPA deals with situations involving an immediate threat to life. When there are reasonable grounds to believe that a risk of fire poses an immediate threat to life, the FPPA permits the Fire Marshal, an assistant to the Fire Marshal or a fire chief to enter land or premises without a warrant or other authorization for the purpose of removing or reducing the threat.

The measures that can be taken are generally temporary, readily implemented and limited in scope. For more information on the subject of immediate threat to life, refer to Section 2.0 of this guideline “Situations Involving An Immediate Threat To Life”.

8.3 Authorization From The Fire Safety Commission To Do Work

Section 33 of the FPPA permits an inspector to apply to the Fire Safety Commission for authorization to do work required by an order provided, in the Fire Safety Commission’s opinion two criteria are met. First, in the Commission’s opinion, failure to do the thing would seriously endanger the health or safety of any person or the quality of the natural environment for any use that can be made of it. Secondly, it must also be verified that the work ordered will not be satisfactorily undertaken by the person named in the order. If these criteria are met, the Fire Safety Commission may authorize the work to be done.

Once authorization to do work is obtained from the Fire Safety Commission, the Fire Marshal or the inspector must carry out the work in a manner specified under Section 34 of the FPPA. Prior to undertaking the work authorized by the Fire Safety Commission, it is necessary to obtain authorization to enter on the land or premises. Evidence must be sworn before a Justice of the Peace. This evidence must support that there are reasonable grounds to believe that entry on the land or premises is necessary to do the authorized work. Subsequently, the Justice of the Peace may issue a warrant permitting entry. In such situations, the Fire Marshal’s Office will provide assistance to obtain a warrant upon request. Access through adjacent land not owned by the person to whom the order was issued may be included as part of the warrant if necessary.


9.0 PREPARING AND ISSUING AN ORDER TO PAY COSTS

9.1 Step-By-Step Instructions For Completing An Order To Pay Costs

The Order to Pay Costs form is a two-sided document. For guidance on completing this form, refer to the corresponding example shown in Appendix A.

Line #1
Where the Order to Pay Costs relates to an issue dealt with under Section 33 of the FPPA, this portion of the form must include the name of the person or party to whom the original order was issued under Subsections 21 (1) or (2) or Sections 25 or 26. It cannot be made out to any other person or party.

Where the Order to Pay Costs relates to work carried out under the provisions of Section 15 of the FPPA involving an immediate threat to life, this portion of the form must identify the name of the owner or person having control of the land or premises, at the time of the incident.

Line #2
Enter the name of the municipality. A city, separated town, town, borough, township, village and improvement districts are municipalities. Hamlets and police villages are not municipalities.

Line #3
Enter the street address where applicable. If not applicable, enter the plot plan or lot number.

Line #4
Check the appropriate box depending upon the circumstances under which authority to do the work was undertaken.

Line #5
Enter the amount (dollars and cents), which is to be paid to the municipality where the municipality is seeking recovery of costs. The figure specified in this space is the sum of the itemized costs listed in Schedule A. Leave this space blank if it is not applicable (i.e. the costs were not borne by the municipality).

Line #6
Enter the amount (dollars and cents), which is to be paid to the Minister of Finance for the province of Ontario where the province is seeking recovery of costs. The figure specified in this space is the sum of the itemized costs listed in Schedule A. Leave this space blank if it is not applicable (i.e. the costs were not borne by the province).

Line #7
Enter the date by which payment is required to be paid. Keeping in mind that the Order to Pay Costs may be appealed within 15 days after service, allow at least 20 days from the date of service for the payment to be made.

Line #8
Enter the complete mailing address including the postal code of the fire official responsible for issuing the order.

Line #9
The fire official responsible for the order enters their signature in the space provided.

Lines #10 to #12
These portions of the Order to Pay Costs form are to be completed at the time of service. The information should be entered on both the original Order to Pay Costs being served and on the fire department copy being retained for record purposes.

Enter the date of service and the name of the person or party to whom the Order to Pay Costs was served in the space provided in Line #10. The order must be served to the same party identified in Line #1.

Personal service is recommended. Service may be made by fire department personnel or by some other means if necessary. Where the order is being served personally by someone other than the inspector who prepared the order, it is suggested that an affidavit of service be obtained and retained for future reference purposes. The person was serving the order should sign their name in the space provided (Line #12) on the original order and on the fire department copy of the order where applicable.

Specify the method of service by checking the appropriate box on Line #11. Where electronic transmission or telephone facsimile transmission was used to accomplish service, write this in the space available and retain the proof of transmission. This information is used to determine the appeal periods under the FPPA and may be required to prove that service was accomplished.

9.2 Rights Of Appeal

For convenience, information pertaining to the rights of appeal are printed on the lower portion of the front page of the order.

9.3 Schedule A (Back of Form)

This portion of the Order to Pay Costs is intended to provide an itemized list of costs which were incurred by the municipality or the province.

The sum of the costs listed on Schedule A, must be reflected in the amount of costs specified in Line #5 and/or #6 on the front page of the Order to Pay Costs.

Column #1
In the column entitled “Description of Work Done”, list and describe details of the work done which can be associated with specific costs. This can include a list of materials purchased, equipment/tools rented, labour (number of hours worked, number of people and hourly wage), or any other details relating to the costs incurred.

Column #2
In the column entitled “Costs”, specify the associated costs corresponding to items identified in Column #1.

Column #3
In the column entitled “Party Undertaking Action”, identify the party that incurred the expenses (municipality or province).

9.4 Further Action After Issuing An Order To Pay Costs

Where an Order to Pay Costs does not result in the desired effect and the order has not been appealed, the municipality or the province may proceed with recovering costs under Section 37 (which involves obtaining an order of the court) or under Sections 38, 39 or 40 (which involves recovering costs through municipal taxes) of the FPPA.


10.0 PREPARING AND ISSUING AN ELECTRICAL INSPECTION
ORDER

Subsection 21 (3) of the FPPA specifies, “If upon the inspection, it is determined that the electrical installations in a building or structure create or pose a risk of fire because of the inadequacy or want of repair of the installations and their wiring, the inspector may order that the electrical installations in the building or structure be inspected by a representative of the Electrical Safety Authority and that the costs of the inspection be paid by the owner or occupant of the building or structure.”

Article 2.4.6.1. of the Fire Code contains provisions stipulating “Temporary electrical wiring shall not be used where it presents a fire hazard.” Enforcing this Article of the Fire Code is more practical than issuing an Electrical Inspection Order to deal with a variety of hazards associated with improper use of extension or flexible cords which may constitute a fire hazard.

On the other hand, Electrical Inspection Orders should be issued with the same discretion that is used in issuing any order under the provisions of the FPPA. Cases of over-fusing and/or misuse of extension cords or octopus wiring may be cleared up with the co-operation of the owner or occupant without a formal order. Re-inspection will indicate the extent of this co-operation. An Electrical Inspection Order should be served only when a re-inspection establishes non-compliance. In cases where the Electrical Safety Authority regulations have been flagrantly violated, an order should be served at the first inspection.

It is important to note that unlike other orders issued under the provisions of the FPPA, Electrical Inspection Orders are served on the Electrical Safety Authority, ordering them to carry out an inspection of the premises. Copy(s) of the Electrical Inspection Order are also provided to the owner(s). Where necessary, the fire official may be contacted to provide assistance to the Electrical Safety Authority inspector in setting up an appointment and gaining access to the property which is the subject of the order.

An Electrical Inspection Order is not to be issued to address the requirements for conducting a general inspection that is required under Subsection 9.8.6. of the Fire Code.

Detailed instructions for completing and serving an Electrical Inspection Order are found in Appendix B. Refer to the Electrical Inspection Order form for detailed instructions.