The Lawyers Weekly - February 24, 2012

A recent appeal ruling by the Divisional Court of Ontario in Norquay v. Woodstock affirms that just because a fire alarm signal does not comply with the Ontario Fire Marshall’s audibility guideline does not mean the signal is “inaudible” and therefore non-compliant with the Ontario Building Code or Fire Code. The issues in the appeal are significant to the rental housing industry because the cost of retrofitting fire alarm systems is substantial; furthermore, the use of a guideline instead of legislation to force fire retrofit exposes owners to regulation by fire officials, rather than by the legislature.

While the audibility guideline has been around since 1998, it is only in recent years that fire inspectors have used it as the basis for determining whether an alarm signal is “audible.” Fire inspectors will order the building owner to conduct audibility tests and then, if the guideline requirements are not met, will order retrofitting of the alarm system to decibel levels that conform to the guideline. This, in turn, typically requires substantial and costly retrofitting in buildings which for many years were inspected and deemed compliant with the Fire Code.

The blanket retrofit orders based solely on guideline compliance have become so prevalent in Ontario and so costly that the rental housing industry decided to

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support Norquay’s legal challenge.

In Norquay, the apartment buildings at issue complied with the retrofit regulations imposed in the 1990 Building Code and the Fire Code. Over several years of inspections, no concerns about audibility were raised by Woodstock fire inspectors. The Ontario Fire Marshall (OFM), in 2010, declared that because two units recorded sound levels 10 db less than those recommended by its audibility guideline, the Fire Code was breached and retrofit was required. The Fire Safety Commission upheld the OFM ruling, so Norquay appealed to Divisional Court.

Evidence tendered in the Norquay case showed that, as early as 1998, the OFM tried to have its audibility guideline imposed on the rental housing industry through legislated retrofit regulations but that the Ontario legislature had declined to do so. Consequently, the OFM decided to bypass the legislature and use the guideline as the sole basis to support compliance orders.

The Divisional Court confirmed that the OFM could not declare a fire alarm system non-compliant

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and order retrofit simply because the recorded audibility level did not conform to the guideline. The legal issue is whether the signal complies with the applicable legislation, not the guideline and, in this case, the legislative requirement was that the signal be “audible.” Just because a signal meets the OFM guideline does not, by default, mean it is “audible” to the occupant. Whether an alarm signal is “ audible” to an occupant depends on many factors, including the age and any hearing impairment of the occupant, ambient noise and location of the device.

The court’s decision in Nor-
quay confirms that non-compli-
ance with the OFM audibility
guideline is not a sufficient basis
for issuing a retrofit order and
that each case turns on its own
facts in determining whether a
signal is “audible” to the occu-
pants. Fire inspectors are
required to compile factual evi-
dence to support a finding that
the alarm signal is not “audible”
and is therefore non-compliant
with the 1990 Building Code and
applicable Fire Code retrofit
regulations. The investigation
should require the inspectors to
enter each resident’s apartment
and make appropriate inquiries,
interviews and inspections to
determine audibility, although Oatley ads LW 1/8 PG_Layout 1 11-07-12 11:12 AM Page 3

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whether proper inspections and investigation will occur remains to be seen.

The evidence in the Norquay case also provided insight into the “big business” side of fire retrofit. An OFM “backgrounder” stated that requiring compliance with the audibility guideline would be good for fire inspection services by increasing inspectors’ workloads and it would generate more business for fire prevention consultants and for manufacturers of signal devices and fire alarm systems. Fortunately, the court was more interested in legislative compliance than with forced implementation of the audibility guideline to support a business relationship between fire inspectors, fire inspection consultants and fire equipment manufacturers.

There are currently numerous outstanding retrofit orders and inspection reports that have been issued to owners of apartment buildings in Ontario and that require compliance with the OFM audibility guideline. The options for building owners are to ask that the orders/reports be withdrawn, or to appeal the orders on the same basis as in Norquay, or to comply with the orders and retrofit their buildings. There continue to be risks tied to each of the options and, since each case is to be determined on its own facts, owners should seek independent legal advice to ensure an informed decision about the best option is chosen. n