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Nov 15, 2018

Fire Code Charges Withdrawn Against Foster Home Operator

By Lisa Corrente
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Torkin Manes LegalPoint

On February 24, 2017, a foster home operated by Connor Homes was engulfed in flames after one of the youth living in the home deliberately started a fire inside the premises.Tragically, a foster parent and another child perished in the fire. A second foster parent was rescued by the local fire department. 

The foster home was located in Oakwood, Ontario, just east of Lindsay in the Kawartha Lakes region. It was demolished after the fire. Connor Homes and two of its directors were charged with an offence under the Fire Protection and Prevention Act, 1997 (“FPPA”) for allegedly failing to ensure that a closure in a fire separation was not obstructed, wedged open or altered in any way that would prevent its intended operation, contrary to the Fire Code. In this case, the alleged “closure in a fire separation” was a self-closing door located in the lower level of the home just outside of the living room area where the fire had been set. The door at issue was purportedly wedged open by the foster parents so that they could better monitor the children. 

On conviction, the charges against Connor Homes and its directors carried a fine of up to $50,000 and/or imprisonment for up to one year. Under the FPPA, the municipal fire department is responsible for enforcing the Fire Code. However, it is the duty of the Fire Marshal to advise municipalities in the interpretation and enforcement of the legislation. 

Interestingly, the charges against Connor Homes gave rise to significant disagreement between the Kawartha Lakes Fire Department (“KLFD”) and the Office of the Fire Marshal (“OFM”). That is, after a fire investigation, the lead forensic fire protection engineer from the OFM determined that the foster home was a single dwelling unit and thus, there was no requirement under the Fire Code (or the Building Code) to have the door at issue act as a “closure in a fire separation”. Accordingly, there could be no violation under the Fire Code for wedging open the door. Notwithstanding the forensic fire protection engineer’s finding that there was no Fire Code violation by Connor Homes as set out by her in the OFM’s Fire Investigation Report, charges against Connor Homes and its directors were laid. 

The KLFD felt strongly that the charges should be laid and a conviction should be pursued in this case. With support from the Ministry of Children, Community and Social Services (“MCCSS”) - which licenses and regulates foster homes - the position put forward by the KLFD through the prosecutor was threefold:

1. Connor Homes was operating the premises as an “unlicensed group home” and therefore, it was required to have the door act as a closure in a fire separation pursuant to the Fire Code; 

2. Even if the premises was a single dwelling unit foster home, the Fire Code required it to have the door act as a closure in a fire separation; and

3. Even if the door was not required, the fact that it had not been removed meant that Connor Homes was required to maintain it as a closure in a fire separation. 

As counsel for Connor Homes in this case, Lisa Corrente of Torkin Manes advanced the following arguments in response: 

1.  Connor Homes was not operating as an unlicensed group home. At the time that it leased the premises and prior to operating there, Connor Homes advised the MCCSS in writing that it would be operating a foster home under its existing foster home licence. Connor Homes reduced the number of children living in the premises (which was previously operating as a group home by a different operator) in order to fall within prescribed limits for foster homes. Further, there was no indication that Connor Homes was intending to increase the number of children in the home. Rather, it had good incentive to maintain the number of children to four or less in view of MCCSS licensing requirements. Additionally, prior to the fire, MCCSS (which has the power to inspect the home at any time) never disputed that the premises was operating as a foster home; 

2. As a single dwelling unit, Connor Homes was not required to have the door at issue act as a “closure in a fire separation”. Single dwelling units are no different than regular family homes. The requirements with respect to fire separations apply to single dwelling units within the context of multi-unit buildings where fire separations are required between dwelling units and between dwelling units and the public corridor. However, the Fire Code (and Building Code) do not require fire separations within individual dwelling units; and

3. There was no requirement to maintain the door as a closure in a fire separation because it did not serve a fire protection purpose. That is, the only purpose of fire protection equipment is to protect people from fire. Where fire protection equipment is installed and visible (e.g. fire extinguishers or sprinkler systems), there may be an expectation that the equipment is functional and individuals may rely on that equipment for their safety, irrespective of whether the equipment is required. For this reason, fire protection equipment that is not required must either be maintained or removed. The Fire Code specifically allows for the decommissioning of fire protection equipment and/or life safety systems.

The door at issue differs from fire protection equipment given that it served multiple purposes – for instance, it may have been used to protect from sound, establish privacy, have been there for security reasons, or for aesthetic purposes. When individuals viewed the door, they did not equate it with “fire protection” and were not relying on the door for fire safety. Given that the door at issue no longer served a fire protection purpose, it was unreasonable to require Connor Homes to remove the door as it continued to serve other purposes. It was also unreasonable to require Connor Homes to continue to maintain the door as a “closure in a fire separation” as the door was no longer required for this purpose.

Counsel was able to confirm with the OFM and other fire experts that their interpretation of the Fire Code as it applied to the facts of this case aligned with that of Connor Homes.  As a result, on November 2, 2018, the prosecutor withdrew all charges against Connor Homes and its directors. 

There are important points to take away from this case for any operator of a residential care home - whether you operate a foster home, group home, long-term care home, retirement home, etc.  

Firstly, ensuring that you obtain complete disclosure of documents from fire authorities is an important step in defending against charges. In this case, the documentary disclosure received from the OFM was critical to understanding the differing opinions in Fire Code interpretation and enforcement as between of OFM and the KLFD.

Secondly, the experts at the OFM are public officials. These experts have a duty to meet with an interested person to discuss their interpretation of the Fire Code, and the evidence and findings of their fire investigations. Meetings with fire officials can be very useful in assisting with the preparation of a home’s defence to charges under the FPPA. 

Finally, the Fire Code is a technical and complicated piece of legislation. Offences for violating the Fire Code can result in hefty fines and/or imprisonment. It is prudent to immediately consult with legal counsel, who understand the legal process and have access to fire experts, if one is ever faced with charges as a result of alleged fire safety violations. 

Lisa Corrente is a partner in Torkin Manes’ Health Law Group. She represented Connor Homes in this case and regularly represents residential care facilities in all matters of statutory compliance. If you have any questions about your home’s compliance, please contact Lisa at 416 643 8800.