Brampton (City) v., 2019 ONCJ 193

CITATION: Brampton (City) v. 1385127 Ontario Inc. , 2019 ONCJ 193 DATE: April 3, 2019 IN THE MATTER OF the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4 and the Ontario Fire Code , O. Reg. 213/07 . Between The Corporation of the City of Brampton prosecutor and 1385127 Ontario Inc. operating as 747 Flea Market and Rathcliffe Properties Limited defendants Ontario Court of Justice Brampton, Ontario Quon J. P.

Reasons for Judgment Trial held: September 26, 2018, and January 17, 2019 Judgment rendered: April 3, 2019 Charges: Rathcliffe Properties Limited, as the owner of the building at 73 Parkhurst Square, Brampton, on or about April 21, 2016, did commit the offence of “having locks, latches or other fastening device such that a door cannot be readily opened from the inside with no more than one releasing operation”, contrary to s. 2.7.2.2 of Ontario Fire Code ( Fire Protection And Prevention Act, 1997 ), O. Reg. 213/07 and thereby committed an offence under 28(1)(

c) of the Fire Protection And Prevention Act, 1997 , S.O. 1997, C.4 (8 counts). 1385127 Ontario Inc. operating as 747 Flea Market, as a tenant of the building at 95 Parkhurst Square, Brampton, between July 16, 2016 and July 23, 2016, did commit the offence of “failing to comply with an inspection order dated December 22, 2015”, contrary to s. 30 of the Fire Protection And Prevention Act, 1997 , S.O. 1997, C.4 (1 count).

Counsel: H. Bourgeois, prosecutor for the City of Brampton J. Macdonald, counsel for the corporate defendants, Rathcliffe Properties Limited and 1385127 Ontario Inc. operating as 747 Flea Market Cases Considered or Referred To: Beaver v. The Queen (1957), (SCC), 118 C.C.C. 129, [1957] S.C.R. 531, 26 C.R. 193 (S.C.C.). Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75 , [2013] O.J. No. 520 (Ont. C.A.), per MacPherson, Armstrong, and BlairJJ.A. Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, (SCC), [1996] 3 S.C.R. 727 (S.C.C.). Deemar v.

College of Veterinarians of Ontario (2008), 2008 ONCA 600 , 298 D.L.R. (4th) 305 (Ont. C.A.), per Lang, Jurianszand MacFarland JJ.A. Delisle v. Canada (Deputy Attorney General), (SCC), [1999] S.C.J. No. 43 (S.C.C.). Graat v. R. (1982), (SCC), 31 C.R. (3d) 289 (S.C.C.). Lévis (City) v. Tétreault, 2006 SCC 12 , [2006] S.C.J. No 12 (S.C.C.). Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031 (S.C.C.). Ontario (Ministry of Labour) v. Hamilton (City), (ON CA), [2002] O.J. No. 283 (Ont. C.A.), per Weiler, Sharpe, andSimmons JJ.A. Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 (S.C.C.). R. v.

Rio Algom Ltd. (1988), (ON CA), 66 O.R. (2d) 674, 46 C.C.C. (3d) 242 (O.C.A.) per Howland C.J.O, Goodmanand Grange JJ.A. R. v. Blair, [1993] O.J. No. 1477 (Ont. Ct. (Prov. Div.)), per Harris J. R. v. Canada Brick Ltd., [2005] O.J. No. 2978 (Ont. S.C.), per Hill J.

R. v. Cancoil Thermal Corp. (1988), 1 C.O.H.S.C. 169 (Ont. Prov. Ct.), per Megginson J. R. v. Courtaulds Fibres Canada (1992), (ON CJ), 76 C.C.C. (3d) 68 (Ont. Prov. Div.), per Fitzpatrick J. R. v. Mohan, (SCC), [1994] S.C.J. No. 36 (S.C.C.). R. v. Morgan et al., [1975] 2 W.L.R. 913 (H.L.). R. v. Pierce Fisheries Ltd., (SCC), [1971] S.C.R. 5 (S.C.C.). R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299 (S.C.C.).

Statutes, Regulations, Bylaws, and Rules Cited: Fire Protection And Prevention Act, 1997, S.O. 1997, C.4, ss. 21(1), 21(1)(b), 21(1)(g), 22, 22(1), 22(2), 28(1), 28(1)(c), 28(3), 28(4),28(5), 28(6), and 30. Ontario Fire Code (Fire Protection And Prevention Act, 1997), O. Reg. 388/97, ss. 1.1.1.1., 1.2.1.1., 1.2.2.1., 1.2.3.1., 1.3.1.1., 1.4.1.1.(1), 1.4.1.2., 2.1.1.1., 2.1.1.2., 2.2.1.1., 2.7.1.6.(6), 2.7., 2.7.2., 2.7.2.1.(1), 2.7.2.1.(2)(b), 2.7.2.1.(2)(e), 2.7.2.2., 2.7.2.2.(1), 2.7.2.2.(1)(a), 2.7.2.2.(2), 9.4.3.1.(3), 9.4.3.4.(1), 9.5.3.4., 9.5.3.5.(1), 9.5.4.1.(2)(b), 9.6.3.5., 9.6.3.6., and 9.9.3.8.

Ontario Building Code (Building Code Act, 1992, S.O. 1992, c. 23), O. Reg. 403/97, ss. 2.2.1.1., 3.2.6, 3.4.6.16.(1), 3.4.6.16.(3),3.4.6.17., and 9.9.6.8.(1). Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64. Technical Changes to the Fire Code Regulation (Fire Protection And Prevention Act, 1997), O. Reg. 256/14, s. 31. Authorities or Reference Material Referred to or Considered: Archibald, T., Jull, K., and Roach, K. Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario:Canada Law Book Inc., 2007). Libman, R.

Libman on Regulatory Offences in Canada, (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., (student edition #1(2014)). Paciocco, D.M. and L. Stuesser, L. The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011). Thompson, D., ed. The Concise Oxford Dictionary of Current English, ninth edition (New York: Oxford University Press, 1995),“open” at pp. 953-4; “release” at p. 1160; and “require” at p. 1169.

Swaigen, John. Regulatory Offences in Canada – Liability & Defences (Scarborough, Canada: Carswell – Thomson Professional Publishing, 1992). Sullivan, R. Statutory

Interpretation (Toronto, Ontario: Irwin Law Inc., 1997). Exhibits entered: Exhibit "1" - copies of 2 letters: one letter is dated December 2, 2015, from 1385127 Ontario Inc. (general partner of 747 Flea Market Limited Partnership) to Brampton Fire Services requesting a fire safety inspection of both 73 & 95 Parkhurst Square for obtaining a business licence from the City of Brampton renewing a tenant licence (2 pages). The first letter also states that a Fire Inspection is scheduled for December 3, 2015. The first letter is signed by Lorraine Miranda, the Administrative Assistant for the 747 Flea Market.

For the second letter, it is a letter from Rathcliffe Properties/Emmet Developments Limited to Brampton Fire Services, and is dated November 26, 2015. Dan Belzowski, the property manager for Rathcliffe Properties and the letter states that they are the owners of both 73, signs the second letter and 95 Parkhurst Square, Brampton and that they grant authorization to conduct a fire inspection of the buildings as required renewing the tenant’s business licence. The letter also states that Brampton Fire Services should contact Dorothy Hawley at the 747 Flea market to make the inspection arrangements (2 pages).

Exhibit "2" - 3 photographs of 95 Parkhurst Square taken by Fire Prevention Officer Van Den Hoek on December 3, 2015 (p. 45 is a photograph of exit door #9; p. 46 is a photograph of exit door #8; and p. 47 is a photograph of exit door #7) and a copy of sketch (p. 53) made by Fire Prevention Officer Van Den Hoek on December 3, 2015, of the outline of the building located at 95 Parkhurst Square, Brampton, which shows the location of 9 exit doors (4 pages).

Exhibit "3" - copy of “Inspection Order” with file I.D. number of 650232 issued by Fire Prevention Officer Van Den Hoek as a result of an inspection that had been conducted on December 3 and 8, 2015, to 1385127 Ontario Inc. operating as 747 Flea Market, and dated December 8, 2015, and personally served on December 22, 2015 on Dorothy Hawley, issued by Fire Prevention Officer Van Den Hoek.

The Inspection Order is addressed to 1385127 Ontario Inc. and Dorothy and Jim Hawley, to remedy defects in respect to 95 Parkhurst Square by removing all additional bolts and additional latches on doors used at the emergency exits. In addition, 1385127 Ontario Inc. was given 15 days or until January 26, 2016 to appeal the order or request additional time to comply or dispute. (3 pages).

Exhibit "4" - copy of letter from the Ontario Fire Marshall dated January 11, 2016, that informed Fire Prevention Officer Van Den Hoek and James Hawley of 1385127 Ontario Inc. that the inspection order (dated December 8, 2015 and served on the corporate defendants on December 22, 2015) in respect to 95 Parkhurst Square had been appealed by 1385127 Ontario Inc. In addition, the Ontario Fire Marshall’s office gave Brampton Fire Services until February 8, 2016 to reply to 1385127 Ontario Inc.’s appeal of the December 22, 2015 inspection order (2 pages).

Exhibit "5" - copy of Fire Prevention Officer Van Den Hoek’s letter dated January 19, 2016, provided to the Ontario Fire Marshall’s Office in response to the corporate defendant 1385127 Ontario Inc.’s appeal of Fire Prevention Officer Van Den Hoek’s December 22, 2015 inspection order in respect to 95 Parkhurst Square. (3 pages). Exhibit "6" - copy of the Ontario Fire Marshall’s ruling dated June 15, 2016, on the appeal brought by 1385127 Ontario Inc. of Fire Prevention Officer Van Den Hoek’s December 22, 2015 inspection order in respect to 95 Parkhurst Square.

The Ontario Fire Marshall had upheld Fire Prevention Officer Van Den Hoek’s order in respect to 95 Parkhurst Square and provided a compliance date of July 15, 2016 for 1385127 Ontario Inc. In addition 1385127 Ontario Inc. was informed of a legal right to appeal the Ontario Fire Marshall’s ruling to the Fire Safety Commission within 15 days (4 pages).

Exhibit "7" - copy of two photographs taken by Fire Prevention Officer Van Den Hoek on July 22, 2016 of exit doors labeled #1 (p. 48) and #2 (p. 49) of the building at 95 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch of the outline of the building at 95 Parkhurst Square entered as Exhibit #2 (2 pages). Exhibit "8" - copy of sketch made by Fire Prevention Officer Van Den Hoek on December 3, 2015, of the building located at 73 Parkhurst Square, Brampton, showing the location of 10 exit doors. (1 page).

Exhibit "9" - copy of three photographs (numbered pages 23, 24, and 25) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #2 of the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (3 pages). Exhibit "10" - copy of two photographs (numbered pages 26 and 27) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #3 pf the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (2 pages).

Exhibit "11" - copy of photograph (numbered page 28) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #4 pf the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (1 page). Exhibit "12" - copy of photograph (numbered page 29) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #5 pf the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (1 page).

Exhibit "13" - copy of two photographs (numbered pages 30 and 31) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #6 pf the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (2 pages). Exhibit "14" - copy of two photographs (numbered pages 32 and 33) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #7 pf the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (2 pages).

Exhibit "15" - copy of three photographs (numbered pages 34, 35, and 36) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #9 pf the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (3 pages).

Exhibit "16" - copy of photograph (numbered page 37) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #10 [Fire Prevention Officer Van Den Hoek said the photograph had been mislabeled and should be labelled exit door #1 ] of the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (1 page).

Exhibit "17" - copy of photograph (photograph 51 taken by Fire Prevention Officer Van Den Hoek on July 22, 2016 of exit door labeled #7 of the building at 95 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as numbered and indicated on her sketch entered as Exhibit #2 (2 pages).

Exhibit "18" - a book of defence documents with Tab A containing sketches of the buildings located 73 and 95 Parkhurst Square in Brampton that were photocopies of the sketches drawn by Fire Prevention Officer Van Den Hoek that contain annotations made by James Hawley in black ink; with Tab B containing a letter dated January 5, 2016 by 1385127 Ontario Inc. to the Ontario Fire Marshal in respect to Inspection Order No. 650232 for 95 Parkhurst Square; with Tab C containing the Inspection orders issued to 1385127 Ontario Inc. for both 95 Parkhurst Square and 73 Parkhurst Square; with Tab D containing the summonses issued respectively on July 21, 2016 to the corporate defendant Rathcliffe Properties Limited in respect to 73 Parkhurst Square and issued on December 15, 2016 to 1385127 Ontario Inc. in respect to 95 Parkhurst Square and 95 Parkhurst Square and copy of the City of Brampton envelop sent by registered mail; with Tab E containing a copy of a photograph taken on December 3, 2015 by Fire Prevention Officer Van Den Hoek of exit door #7 at 95 Parkhurst Square and a copy of a photograph taken on July 22, 2016 by Fire Prevention Officer Van Den Hoek of exit door #7 at 95 Parkhurst Square; with Tab F containing copies of two photographs taken on December 3, 2015 by Fire Prevention Officer Van Den Hoek of exit door #8 at 95 Parkhurst Square; with Tab G containing copies of two photographs taken on December 3, 2015 by Fire Prevention Officer Van Den Hoek of exit door #9 at 95 Parkhurst Square; with Tab H containing copies of two photographs taken on December 3, 2015 by Fire Prevention Officer Van Den Hoek of exit doors #2A and #2B at 73 Parkhurst Square and copies of two photographs taken on April 21, 2016 by Fire Prevention Officer Van Den Hoek of exit door #2 at 73 Parkhurst Square; with Tab I containing copies of two photographs taken on December 3, 2015 by Fire Prevention Officer Van Den Hoek of exit door #4 at 73 Parkhurst Square; and with Tab J containing the response by Fire Prevention Officer Van Den Hoek dated January 19, 2016 that was sent to the Fire Marshall for an appeal of her Inspection Orders issued in respect to 73 Parkhurst Square and 95 Parkhurst Square (37

pages). Exhibit "19" - resume and biography of David Hine, professional engineer (2 pages). Exhibit "20" - David Hine Engineering Inc. report prepared for the corporate defendants’ counsel, James MacDonald, dated September 25, 2018 (7 pages). 1.

INTRODUCTION [ 1 ] This regulatory trial is about “doors” and concerns about fires – which are not related to the 1960s rock group which had the hit song “Light My Fire” that was named “The Doors” – but related to the kind of physical doors used at the perimeter of a building to facilitate the quick escape by people from that building in emergency situations, such as when there is a fire or gunfire in the building.

The emergency exit doors that are at issue in this trial are for the two buildings that are used for the business known as the “747 Flea Market” located at 73 and 95 Parkhurst Square in the City of Brampton.

After Fire Prevention Officer Van Den Hoek of the City of Brampton Fire and Emergency Services had conducted a fire safety inspection on December 3 and 8, 2015, of the two buildings, inspection orders had been issued by her and served on December 22, 2015, to the owner of the two buildings, Rathcliffe Properties Limited, and to the principal tenant of those buildings, 1385127 Ontario Inc. operating as 747 Flea Market (“the corporate defendants”), requiring that the Ontario Fire Code violations that had been observed in the fire safety inspection had to be remedied by them by July 15, 2016. [ 2 ] There were several Fire Code violations listed in the inspection orders, but the one involving the emergency exit doors that had been at issue in the trial had required the defendants to “Remove additional locks/ latches that have been installed on all emergency exit doors” on both buildings, so as to comply with s. 2.7.2.2(1) of Division B of the Ontario Fire Code ( Fire Protection And Prevention Act, 1997 ), O.

Reg. 213/07 . During her fire safety inspection conducted on the two buildings, Fire Prevention Officer Van Den Hoek had observed that there had been one or two additional slide bolts, locks, latches, or alarmed push bars that had been added to several of the emergency exit doors (which had exit signs visibly posted above the doors) in both buildings, which Van Den Hoek determined had contravened the legal requirement to have only one releasing operation or mechanism on an emergency exit door.

The inspection orders requiring the corporate defendants to remove the additional locks or latches on all emergency exit doors on the two buildings had been for the purpose of public safety, so as to ensure that those emergency exit doors could then be “readily opened from the inside with no more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism” , as had been legally mandated under s. 2.7.2.2 .(1) .

The mandated measures or legal requirements for the type, nature, and number of locking, latching and other fastening devices or door opening mechanism that may be placed on emergency exit doors is set out under s. 2.7.2.2 .(1) of the Ontario Fire Code , which provide [ emphasis is mine below ]: Requirements for locking, latching and fastening devices 2.7.2.2.

(1) Subject to Sentences (2) and (3), locking, latching and other fastening devices shall be such that a door can be readily opened from the inside with no more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism on , (

a) every exit door required by this Code , and … [ 3 ] However, both corporate defendants had appealed their respective inspection orders that had been served on them by Fire Prevention Officer Van Den Hoek on December 22, 2015, with the Ontario Fire Marshal’s Office. As such, the inspection orders did not have to be complied with by the compliance date of January 26, 2016, that had been set out in those inspection orders until their appeals were decided .

After both the corporate defendants and the Brampton Fire and Emergency Services were given an opportunity to make written submissions to the Ontario Fire Marshal’s Office in regards to the appeal of the December 22, 2015 inspection orders, the Ontario Fire Marshal’s Office upheld the inspection orders and issued their written ruling on June 15, 2016 . Both corporate defendants were then given until July 15, 2016 to comply with those December 22, 2015 inspection orders in regards to the emergency exit doors in both buildings to “ Remove additional locks/ latches that have been installed on all emergency exits ”.

[ 4 ] The Ontario Fire Marshal’s Office had also provided their written ruling on the appeal of the inspection orders to both corporate defendants, but James Hawley, the director of 1385127 Ontario Inc., had testified that when he had received the Ontario Fire Marshal’s written ruling he had quickly scanned the ruling and then put it away in a file, since he had believed that the additional locks or latches on all the exit doors in both buildings had been removed by or about March 17, 2016.

And, in respect to exit door #7 in the building at 95 Parkhurst Square, Hawley had believed that exit door #7 had not been in violation of s. 2.7.2.2 .(1) after the top slide bolt latch of two slide bolt latches had been removed about March 17, 2016, and as such, Hawley had believed that the remaining slide bolt latch and the push bar mechanism on exit door #7 would only comprise one releasing operation or mechanism that would not be in violation of the one-only-releasing-mechanism prescription or requirement under. s. 2.7.2.2 .(1) of the Ontario Fire Code .

In short, Hawley believed that the December 22, 2015 inspection orders in respect to the emergency exit doors had been already in compliance with s. 2.7.2.2 .(1) of the Ontario Fire Code by or about March 17, 2016, before the written ruling by the Ontario Fire Marshal’s Office had been issued on June 15, 2016.

Furthermore, because of the information that Hawley said he had received from a conversation held sometime about March 17, 2016, between Hawley and Yosh Imahori, a Fire Marshall delegate of the Ontario Fire Marshal’s Office, Hawley said he had believed that exit door #7 at 95 Parkhurst Square had been in compliance with s. 2.7.2.2(1) because the push bar mechanism on exit door #7 did not require a hand or fingers to operate the mechanism like a slide bolt, a lock, or a thumb latch would require, so that the remaining slide bolt latch on exit door #7 which required the use of fingers or a hand to operate the releasing mechanism would then be the only door releasing mechanism on exit door #7. [ 5 ] James Hawley had also testified that once he had heard that the City of Brampton was going to prosecute the two corporate defendants for Fire Code violations, Hawley said he had then decided that he was not going to touch or change anything further in respect to the emergency exit doors on the two buildings, for fear that the City of Brampton would use any subsequent changes that would be made to the emergency exit doors as evidence or proof that the two corporate defendants had contravened s. 2.7.2.2 .(1) of the Ontario Fire Code . [ 6 ] However, subsequent to that July 15, 2016 compliance date, Fire Prevention Officer Van Den Hoek of the Brampton Fire and Emergency Services had re-attended at both 73 and 95 Parkhurst Square on July 22, 2016, at which time she had noted that some of the additional “ locks, latches or other fastening device” had been removed from the emergency exit doors for the two buildings, but that not all of the additional “ locks, latches or other fastening device” had been removed from all of the emergency exit doors for the two buildings. [ 7 ] As a consequence of observing that some of the emergency exit doors still had additional latches or locks after July 15, 2016, Fire Prevention Officer Van Den Hoek then charged Rathcliffe Properties Limited, as the owner of the building located at 73 Parkhurst Square, Brampton on July 21, 2016, with 8 counts of contravening s. 2.7.2.2 of the Ontario Fire Code in respect to 8 of the emergency exit doors for the building located at 73 Parkhurst Square, for having additional locks and latches on those exit doors, and as such, Rathcliffe Properties Limited would have committed an offence under s. 28(1) (

c) of the Fire Protection And Prevention Act, 1997 , S.O. 1997, C.4 ( Information # 7681 ). [ 8 ] In addition, Fire Prevention Officer Van Den Hoek charged 1385127 Ontario Inc. operating as 747 Flea Market (“ 1385127 Ontario Inc. ”), as the principal tenant of the two buildings, on December 15, 2016, with 1 count of failing to comply with that December 22, 2015 inspection order by the compliance date of July 15, 2016, by failing to remove all of the additional “ locks, latches or other fastening device” from all of the emergency exit doors in respect to the building located at 95 Parkhurst Square, and as such, the corporate defendant, 1385127 Ontario Inc., would have committed an offence under s. 30 of the Fire Protection And Prevention Act, 1997 , S.O. 1997, C.4 ( Information #7821 ). [ 9 ] As well, Fire Prevention Officer Van Den Hoek had also charged Rathcliffe Properties Limited, the owner of the two buildings, on November 10, 2016, with 1 count of failing to comply with that December 22, 2015, inspection order by the compliance date of July 15, 2016, by failing to remove all of the additional “ locks, latches or other fastening device” from the emergency exit doors in respect to the building located at 95 Parkhurst Square, and as such, Rathcliffe Properties Limited would have committed an offence under s. 30 of the Fire Protection And Prevention Act, 1997 , S.O. 1997, C.4 ( Information # 7822 ). [ 10 ] The trial of the 10 charges in total on the 3 informations, then commenced on September 26, 2018.

However, before arraignment of the corporate defendants for their respective charges, the prosecution withdrew the one charge of “failing to comply with an inspection order dated December 22, 2015” that was laid against Rathcliffe Properties Limited, which is contained in Information #7822. Consequently, the trial then began with only the 9 charges on the 2 remaining informations (the 8 counts contained in Information #7681 and the 1 count contained in Information #7821). However, the trial could not be completed on September 26th and the trial was then adjourned to January 17, 2019, for its continuation.

On January 17, 2019, at the beginning of the second day of the trial, the prosecution invited the court to dismiss the 8 counts on Information #7681 against the corporate defendant, Rathcliffe Properties Limited, because of the omission of a reference to the application of the Ontario Building Code in the wording of each those 8 charges in Information #7681. As such, those 8 counts on Information #7681 against Rathcliffe Properties Limited were dismissed.

Accordingly, the trial only continued on the second day of the trial with the sole charge on Information #7821 against 1385127 Ontario Inc., in respect to the building at 95 Parkhurst Square, which had been for the charge of “failing to comply with the inspection order dated December 22,

2015”. [ 11 ] And, although at the time the trial had begun, the prosecution had contended that 1385127 Ontario Inc. had not complied with the inspection orders in respect to the emergency exit doors at 95 Parkhurst Square before July 15, 2016, as 3 of the exit doors still had additional “ locks, latches or other fastening device” on them, Fire Prevention Officer Van Den Hoek during the trial had changed her view about the exit doors comprising of a double-set of exit doors in which one side or leaf of the set of double exit doors would be in a fixed or locked position. Her changed

interpretation for 2 of the 3 exit doors that were in violation of the Fire Code was that the non- moving exit door of the double-set of exit doors could indeed have additional “ locks, latches or other fastening device” on them, and as such, would not contravene s. 2.7.2.2 .(1) of the Ontario Fire Code . As such, 2 of the 3 exit doors at 95 Parkhurst Square that were comprised of a double set of exit doors were now viewed by Fire Prevention Officer Van Den Hoek to not have contravened s. 2.7.2.2 ., as long as the moving door of the double set of doors had only one releasing operation or mechanism.

Accordingly, only one emergency exit door, exit door #7, as designated by Fire Prevention Officer Van Den Hoek on her sketch for the layout of the building at 95 Parkhurst Square (see Exhibit #2) is contended by the prosecution to be not in compliance with s. 2.7.2.2 .(1) on July 22, 2016, when Van Den Hoek had re-attended the building at 95 Parkhurst Square for a compliance check.

And as such, the prosecution contends that 1385127 Ontario Inc. had failed to comply with the December 22, 2015 inspection order by failing to remove all additional “ locks, latches or other fastening device” on all of the exit doors at 95 Parkhurst Square by July 15, 2016. [ 12 ] For that remaining charge, and in its defence to the charge of “failing to comply with the inspection order dated December 22, 2015”, the corporate defendant, 1385127 Ontario Inc., contends that first, s. 2.7.2.2 .(1) of the Ontario Fire Code does not apply to emergency exit doors because s. 2.7.2.2 .(1)(

a) specifically refers to “ Every exit door required under the Code ”, in which the corporate defendant argues that such exit doors are only “required” under the Ontario Building Code and not under the Ontario Fire Code , because the Fire Code does not specifically provide for the addition or removal of exit doors in a building once the building has been constructed, and that the Fire Code is only maintenance legislation which does not specifically allow for the number or quantity of exit doors in a building to be changed after the building is constructed.

Hence, the corporate defendant submits that “exit doors” are not “required” to be installed or needed under the Ontario Fire Code , since that legal requirement is contained in the Ontario Building Code. [ 13 ] Alternatively, the corporate defendant argues that if the court does indeed find that s. 2.7.2.2 . of the Ontario Fire Code does apply to the emergency exits doors at 95 Parkhurst Square, then the corporate defendant submits that it did comply with s. 2.7.2.2 .(1) since it had removed all additional “ locks, latches or other fastening device” from the emergency exit doors in respect to both buildings by or about March 17, 2016, and as such were in compliance with the December 22, 2015 inspection orders before the compliance date of July 15, 2016. [ 14 ] And in respect to exit door #7 at 95 Parkhurst Square, the corporate defendant contends that exit door #7, in particular, had not been in violation of s. 2.7.2.2 .(1) because, even though there had been both a push bar mechanism and a slide bolt latch on exit door #7, the corporate defendant argues that the push bar mechanism on exit door #7 is not a separate releasing operation for the purposes of s. 2.7.2.2 .(1), but an opening operation integral to that exit door, and that the slide bolt latch on exit door #7 is the only releasing mechanism on exit door #7 that has to be unlocked or unlatched in order to open that exit door to the outside in an emergency. [ 15 ] Furthermore, in response to the corporate defendant’s arguments, the prosecution submits that the defence arguments are a collateral attack on the inspection orders and that the legal measure of only one releasing operation or mechanism or operation for an exit door under s. 2.7.2.2 .(1) of the Ontario Fire Code does apply to the emergency exit doors at 95 Parkhurst Square, as s. 2.7.2.2 .(1)(

a) does expressly refer to “every exit door” that is so particularized, stipulated, or prescribed by the Fire Code .

And because s. 2.7.2.2 .(1) applies to every emergency exit door in the building at 95 Parkhurst Square, the prosecution submits that exit door #7 at 95 Parkhurst Square did contravene s. 2.7.2.2 .(1) because it still had two releasing operations or mechanisms, which is not permitted on an exit door after the compliance date of July 15, 2016, as the slide bolt latch and the push bar mechanism on exit door #7 are two distinct and separate releasing operations or mechanisms that have to be both engaged to release that particular exit door from its door frame.

Specifically, the prosecution submits that because every exit door has to be readily open from the inside through only one releasing operation or mechanism and because the push bar mechanism on exit door #7 is indeed a releasing or opening operation for that particular exit door, then exit door #7 will not open freely without applying sufficient pressure on the push bar mechanism in order to release that exit door from the door frame. [ 16 ] In addition, in respect to James Hawley’s claim that the inspection orders were vague, the prosecution submits that the inspection orders were not vague as they had clearly stated or specified every exit door and not to just one or two exit doors.

And in respect to Hawley’s reliance on a conversation with and information that he had been given to him by Yosh Imahori, a delegate from the Ontario Fire Marshal’s Office, in respect to the inspection orders and the emergency exit doors, the prosecution submits that the evidence would contravene the hearsay rule since Imahori is not present to testify and that Hawley had not made any notes about what Imahori had stated to him. [ 17 ] Furthermore, in response to the defence argument that s. 2.7.2.2 .(1) of the Ontario Fire Code does not apply to the exit doors in question because exit doors are not “required” under the Ontario Fire Code , since they are only legally “required” to be installed in a

building under the Ontario Building Code , the prosecution submits that the Fire Code does apply to emergency exit doors, as the exit doors at 95 Parkhurst Square had exit signs above them, and that in an emergency situation the public would not be able to get out of the building quickly because of the additional locks or latches on the emergency exits doors.

And, that if the Fire Code did not apply to the exit doors at 95 Parkhurst Square, then the prosecution argues that the safety of employees and patrons inside the building would be compromised. [ 18 ] Accordingly, the prosecution submits that the actus reus of the offence has been proven beyond a reasonable doubt.

Moreover, the prosecution submits that the corporate defendant has not made out the due diligence defence, since it did not take all reasonable steps in the circumstances to avoid committing the offence of “failing to comply with the December 22, 2015 inspection order”, considering that no one from the corporate defendant had contacted Fire Prevention Officer Van Den Hoek to discuss the inspection orders or to inquire what had needed to be done in order to rectify the violations of the Ontario Fire Code and to bring all the exit doors for the two buildings into compliance.

Furthermore, to rebut James Hawley’s belief that the exits doors had been in compliance before the compliance date of July 15, 2016, the prosecution submits that after the Ontario Fire Marshal’s Office had upheld the inspection orders, Hawley, the director of 1385127 Ontario Inc., had testified that he had only quickly scanned the written ruling issued on June 15, 2016, upholding the inspection orders, and then put the written ruling away in a file. [ 19 ] Now, in respect to deciding the first issue on whether the one releasing mechanism or operation requirement for exit doors under s. 2.7.2.2 .(1) of the Ontario Fire Code applies to the exit doors at 95 Parkhurst Square, after using a broad and purposive

interpretation of the phrase, “ Every exit door required by this Code ”, contained in s. 2.7.2.2 .(1)(a), which is contained in a piece of public welfare legislation, s. 2.7.2.2 .(1) does apply to the emergency exit doors at 95 Parkhurst Square.

This is because exit doors are legally bound or legally required by expressed provisions set out in the Fire Code to be designed and installed so as to open outward in the direction of travel for the purposes of fire safety and public safety, and because the Ontario Fire Code itself has expressed concurrent jurisdiction with the Ontario Building Code in regards to the design and installation of exit doors on buildings, and that neither the Fire Code nor the Building Code expressly state that the Building Code has exclusive jurisdiction over the regulation of exit doors in buildings. [ 20 ] And, on the second issue of whether the slide bolt latch and the push bar mechanism on exit door #7 at 95 Parkhurst Square comprise of one or two separate releasing operations or mechanisms, the slide bolt latch and the push bar mechanism are indeed two separate releasing operations or mechanisms, since exit door #7 will not open freely after the slide bolt is moved to the open position without sufficient pressure being applied to the push bar to release the exit door from its door frame.

As such, since exit door #7 still contained both the slide bolt latch and the push bar mechanism after the compliance date of July 15, 2016, then between July 16, 2016 to July 23, 2016, exit door #7 had been in violation of s. 2.7.2.2 .(1), which permits only one releasing operation or mechanism on an emergency exit door.

Hence, the prosecution has proven beyond a reasonable doubt that the corporate defendant, 1385127 Ontario Inc., has committed the actus reus of the offence of failing to comply with the December 22, 2015 inspection order when it did not remove the additional lock or latch from exit door #7 in the building at 95 Parkhurst Square by July 15, 2016. [ 21 ] And, in respect to the defence of due diligence for this strict liability offence of “failing to comply with the December 22, 2015 inspection order”, the corporate defendant, has not met its burden in establishing on a balance of probabilities that it had taken all reasonable steps in the circumstances to avoid committing the offence, in order to receive an acquittal.

As such, the prosecution, on the totality of the evidence, has proven beyond a reasonable doubt that the corporate defendant, 1385127 Ontario Inc., is guilty of failing to comply with the December 22, 2015 inspection order in respect to 95 Parkhurst Square, between July 16, 2016 and July 23, 2016. [ 22 ] Furthermore, three witnesses altogether had testified in the trial. One for the prosecution and two for the defence.

For the prosecution, their witness was Fire Prevention Officer Van Den Hoek; while for the defence, their witnesses were James Hawley, the director of the corporate defendant, 1385127 Ontario Inc., and David Hine, an expert witness on the general application of the Ontario Fire Code and Ontario Building Code for the construction of new buildings and the retrofit of older buildings. [ 23 ] In addition, the trial, which had initially started with 3 informations in respect to the two corporate defendants were held over 2 days: September 26, 2018, a nd January 17, 2019.

After the evidence and closing arguments portion of the trial were completed, the matter was then adjourned until April 3, 2019, for judgment. These, therefore, are the written reasons for judgment: 2.

ADDITIONAL BACKGROUND [ 24 ] In this regulatory prosecution, the City of Brampton Fire and Emergency Services has charged two corporate entities, who are respectively, the owner and principal tenant of two buildings located at 73 Parkhurst Square and 95 Parkhurst Square in Brampton , with contraventions of the Ontario Fire Code (which are offences under the Fire Protection And Prevention Act, 1997 , S.O. 1997, C.4 ) in respect to the emergency exit doors at the perimeter of those two buildings by having additional locks and latches and for not removing

the additional locks and latches by the compliance date of July 15, 2016.

The charges resulted from inspection orders that had been issued on December 22, 2015, against both the owner and the principal tenant of both buildings after a fire safety inspection had been conducted by Fire Prevention Officer Van Den Hoek on December 3 and 8, 2015, that had been requested in writing by the master or principal tenant of both of the two buildings, 1385127 Ontario Inc., in order to renew a municipal business licence with the City of Brampton. [ 25 ] The two buildings at 73 Parkhurst Square and 95 Parkhurst Square in the City of Brampton are buildings that contain a business known by the name of “747 Flea Market”.

Moreover, the two buildings are only open to the public on weekends (Saturday and Sunday) when it operates as flea market where vendors sell prepared foods, goods and wares from 100s of individual booths. Moreover, the flea market is busy and full of people on weekends when it is open to the public. However, the two building are not open to the general public during weekdays from Monday to Friday, except for Friday when it is open to the vendors who operate those booths to bring in goods and supplies to their individual booths.

However, even though the two buildings are not open to the general public from Monday to Friday, office staff or personnel of 1 to 4 persons for the 747 Flea Market are present in 95 Parkhurst Square during the day from Monday to Friday where the office for the 747 Flea Market and the principal tenant, 1385127 Ontario Inc. is situated.

And when the flea market is operating on Saturday and Sunday, it is a very busy place where there may be hundreds of people inside the two buildings. [ 26 ] For the two buildings, there are 9 exit doors that can be used to exit the building located at 95 Parkhurst Square in an emergency and 10 exit doors that can be used to exit the building located at 73 Parkhurst Square in an emergency. [ 27 ] Furthermore, the corporate defendant, Rathcliffe Properties Limited , for the purposes of this proceeding, is the owner of both of the two buildings located at 73 Parkhurst Square and 95 Parkhurst Square.

It is the owner and landlord of 95 Parkhurst Square; while it is one of the owners of 73 Parkhurst Square, as well as one of the landlords of 73 Parkhurst Square.

Rathcliffe Properties Limited had been originally charged with committing 9 offences on two informations: 8 contraventions of the Ontario Fire Code in respect to 8 different emergency exit doors for the building located at 73 Parkhurst Square which were set out in information #7681 and 1 charge in information #7822 of “failing to comply with an inspection order dated December 22, 2015” in respect to 95 Parkhurst Square, that required the removal of all additional locks and latches on those particular exit doors by the compliance date of July 15, 2016.

However, prior to arraignment, the prosecution had withdrawn the “failing to comply with an inspection order dated December 22, 2015” charge in respect to 95 Parkhurst Square against Rathcliffe Properties Limited (Information #7822). Then on the second day of the trial, the prosecution invited the court to dismiss the remaining 8 charges on Information #7681 against Rathcliffe Properties Limited in respect to 73 Parkhurst Square, due to the omission of a reference to the application of the Ontario Building Code in the wording of each of the 8 individual charges on that information.

As such, Rathcliffe Properties Limited was acquitted of the 8 charges laid against them under Information #7681. [ 28 ] In addition, the second corporate defendant, 1385127 Ontario Inc. operating as 747 Flea Market , is the master or principal tenant of both of the buildings at 73 Parkhurst Square and 95 Parkhurst Square. It had also been charged with “ failing to comply with an inspection order dated December 22, 2015”, in respect to 3 different emergency exit doors for the building located at 95 Parkhurst Square.

However, Fire Prevention Officer Van Den Hoek later testified that she had she had been incorrect in her

interpretation of the Ontario Fire Code for 2 of those 3 exit doors. Specifically, Van Den Hoek had revised her view about the non-moving leaf of a double set of emergency exit doors that had additional locks or latches being in contravention of s. 2.7.2.2 .(1). She said that the non-moving leaf of a set of double doors can have additional locks or latches, since the moving leaf of the double doors which can only have one releasing operation or mechanism would be used as the emergency exit while the non-moving leaf can always remain in a fixed or locked position.

As a consequence, Van Den Hoek’s present view is that only 1 of those 3 exits doors at 95 Parkhurst Square had been in non- compliance with the Ontario Fire Code .

Ergo, only exit door #7, as labelled by Fire Prevention Officer Van Den Hoek on her sketch of the building located at 95 Parkhurst Square (Exhibit #2), is the one remaining exit door that is considered by Fire Prevention Officer Van Den Hoek to still not be in compliance with s. 2.7.2.2 .(1) of the Ontario Fire Code by the compliance date of July 15, 2016. [ 29 ] Moreover, the trial had started with 3 informations, 15 charges and 2 corporate defendants, in respect to the 2 buildings located at 73 Parkhurst Square and 95 Parkhurst Square in Brampton.

However, by the 2nd day of the trial, only one charge remained that still had to be decided, which is the charge contained in Information #7821 in respect to one emergency exit door at 95 Parkhurst Square (exit door #7), in which 1385127 Ontario Inc. has been charged with “failing to comply with an inspection order dated December 22, 2015”. As for the other 14 charges, they had either been withdrawn or dismissed by invitation of the prosecution. (

a) Inspection Orders in respect to 95 Parkhurst Square (file I.D. No. 60232) [ 30 ] As a result of the fire safety inspection conducted by Fire Prevention Officer Van Den Hoek of the building located at 95 Parkhurst Square on December 3 and 8, 2015, Fire Prevention Officer Van Den Hoek had issued and served inspection orders under s. 21(1) (

g) of the Fire Protection And Prevention Act, 1997 , S.O. 1997, C.4 , on Dorothy Hawley on December 22, 2015. Those inspection orders had ordered the corporate defendant, 1385127 Ontario Inc., Dorothy Hawley, and James Hawley to remedy the Fire Code violations that had been observed and listed by Officer Van Den Hoek in regards to 95 Parkhurst Square. The order that had related to the emergency exit doors at 95 Parkhurst Square had been contained in item #1 of the Fire Code violations set out in the inspection

orders, which provided that: Therefore, pursuant to Clause g of Subsection (1) of

Section 21 of the Fire Protection And Prevention Act, 1997 , S.O. 1997, C.4 , it is ordered that The fire code violations be remedied 1. Division B – 2.7.2.2

(1) Subject to Sentences (2) and (3), locking, latching and other fastening devices shall be such that a door can be readily opened from the inside with no more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism on, (

a) every exit door required by this Code Remove additional locks/ latches that have been installed on all emergency exits. … Work prescribed in this Order is deemed not to contravene the Building Code established under the Building Code Act, 1992. [see s. 22(2) of the Fire Protection And Prevention Act, 1997 ] The work in the Order must be completed by 2016 01 28 Heather Van Den Hoek … (

b) The Building At 95 Parkhurst Square [ 31 ] The charge related to 95 Parkhurst Square concerns an allegation that between July 16, 2016 and July 23, 2016, the corporate defendant, 1385127 Ontario Inc., who is the principal tenant at 95 Parkhurst Square, had committed the offence of failing to comply with an inspection order issued by Fire Prevention Officer Van Den Hoek on December 22, 2015. The building at 95 Parkhurst Square has 9 exit doors that lead directly to the outside of the building and which all have exit signs posted above each of those 9 exit doors.

The building is also a large one-story building that is approximately 40,000 square feet in size.

For the purposes of the Ontario Fire Code the building is classified as a mercantile occupancy. [ 32 ] In addition, James Hawley testified that he is the sole director, officer, and shareholder of 1385127 Ontario Inc., and that Dorothy Hawley is not an owner of 1385127 Ontario Inc., as had been believed and stated by Fire Prevention Officer Van Den Hoek. [ 33 ] Moreover, during the fire safety inspection conducted on December 3 and 8, 2015, at the behest of the corporate defendant, 1385127 Ontario Inc., Fire Prevention Officer Van Den Hoek testified that she had observed violations of the Ontario Fire Code in respect to 3 of the 9 exit doors in the building at 95 Parkhurst Square, and because of the concern for public safety, she had issued and served an inspection order on December 22, 2015 on James Hawley, Dorothy Hawley, and the corporate defendant, 1385127 Ontario Inc., to “ Remove additional locks/ latches that have been installed on all emergency exits ” at 95 Parkhurst Square, so that there would be only one releasing operation or mechanism for each exit door.

On July 22, 2016, after the Ontario Fire Marshal’s Office had upheld Fire Prevention Officer Van Den Hoek’s inspection orders, and a date which is after the compliance date of July 15, 2016, Officer Van Den Hoek had re-attended 95 Parkhurst Square and had observed that her inspection order dated December 22, 2015, in respect to 3 of the exit doors had still not been complied with. Two of the exit doors were a set of double doors where additional locks or latches were still on the non-moving leaf of the double doors.

And, for exit door #7, which had a push bar mechanism, Officer Van Den Hoek had observed that there was one of the two additional slide bolt latches that she had observed during the fire safety inspection on December

3, 2015, still on the exit door and that it had not been removed. [ 34 ] However, Fire Prevention Officer Van Den Hoek during the trial had changed her view about whether the two sets of double exit doors had indeed contravened s. 2.7.2.2 .(1).

Officer Van Den Hoek had ultimately concluded that the non-moving side of the set of double exit doors could remain in the locked position at all times, since the other leaf of the double exit doors or the moving leaf of the double doors which only contained one releasing operation mechanism could still be used as the emergency exit, so that the additional slide bolts and latches could then remain on the non-moving side of the double exit doors. [ 35 ] Moreover, Fire Prevention Officer Van Den Hoek had testified that her

interpretation had indeed changed in respect to whether the non-moving leaf of a set of double exit doors at 95 Parkhurst Square in which she had found additional slide bolt latches on the non- moving leaf of the double exit doors were in fact contravening s. 2.7.2.2.(1) of the Ontario Fire Code . In particular, Van Den Hoek said that it was her view now that it was permissible to have additional locks and latches on the non-moving side of a set of double exit doors as long as the moving side of the double exit doors had only one releasing operation or mechanism.

Moreover, Van Den Hoek said that 2 of the 3 exit doors which had been in violation of s. 2.7.2.2 .(1) on July 22, 2016 were a set of double doors. As a consequence, only one of the exit doors in the building at 95 Parkhurst Square, namely exit door #7, as referred to by Fire Prevention Officer Van Den Hoek on her sketch of the outline of the building at 95 Parkhurst Square (Exhibit #2) is contended to not have been in compliance with s. 2.7.2.2 .(1) after the compliance date of July 15, 2016. (

c) Exit Door #7 At 95 Parkhurst Square [ 36 ] On December 3, 2015, Fire Prevention Officer Van Den Hoek had observed during the fire safety inspection that exit door #7 at 95 Parkhurst Square, which was a solid door, had contained a push bar mechanism and two slide bolt latches attached to the interior side of the exit door. Officer Van Den Hoek also said the slide bolt latches when engaged would be slid into the door jamb surrounding the exit door.

She also testified that she had taken photographs of exit door #7 with the two slide bolt latches on December 3, 2015 (see the photograph marked as Exhibit #1). [ 37 ] Furthermore, Officer Van Den Hoek said that exit door #7 at 95 Parkhurst Square is located in the northeast corner of the building. [ 38 ] After the written ruling of the Ontario Fire Marshal’s Office was issued on June 15, 2016, which had upheld the December 22, 2015 inspection orders, Fire Prevention Officer Van Den Hoek had re-attended the building at 95 Parkhurst Square on July 22, 2016 for a compliance check, and had observed that only one of the two slide bolt latches that she had observed on December 3, 2015, had been removed from exit door #7 and that exit door #7 had contained both a push bar mechanism and a slide bolt latch, which she said would still be in violation s. 2.7.2.2 .(1) of the Ontario Fire Code that only permits one releasing operation or mechanism on an exit door.

She also said that she had taken a photograph of exit door # 7 on July 22, 2016, which showed the push bar mechanism and the additional slide bolt latch (see Exhibit #17). [ 39 ] Ergo, exit door #7 is the only exit door at 95 Parkhurst Square that the prosecution contends had still been in violation of s. 2.7.2.2 .(1) of the Ontario Fire Code after the compliance date of July 15, 2016.

And, as a consequence, the prosecution contends that the corporate defendant, 1385127 Ontario Inc., had failed to comply with the December 22, 2015 inspection order to remove all additional locks or latches from all exit doors at 95 Parkhurst Square by the compliance date of July 15, 2016. [ 40 ] In addition, James Hawley, the director of 1385127 Ontario Inc., had testified that because of the half-an-hour conversation that Hawley had had with Yosh Imahori, a Fire Marshall delegate, of the Ontario Fire Marshal‘s Office, on or about March 17, 2016, about the December 22, 2015 inspection orders, Hawley had believed that exit door #7 had not been in violation of s. 2.7.2.2 .(1) of the Ontario Fire Code .

The reasoning for Hawley’s belief was that a releasing mechanism on an exit door required the use of fingers or a hand to operate the releasing mechanism to be considered a releasing mechanism and that since the push bar mechanism on exit door #7 did not require the use of finger or a hand to cause the opening function of the push bar mechanism to occur, then the push bar mechanism was not a releasing mechanism under s. 2.7.2.2 .(1), as the opening function of the push bar mechanism could be accomplished by using any part of a person’s body to apply pressure on the push bar to open the exit door. [ 41 ] Specifically, the corporate defendant, 1385127 Ontario Inc., contends that there is only one releasing operation or mechanism on exit door #7 and that this mechanism would be the slide bolt latch that still remains on the exit door, and that the push bar mechanism on exit door #7 is not a releasing mechanism, but an opening mechanism that is an integral part of the door that can be pushed with any part of a persons’ body that would then open the exit door, so that the push bar mechanism is not a separate and distinct releasing mechanism like the slide bolt latch would be.

[ 42 ] In addition, Hawley also testified that it was his opinion that all of the additional bolts and locks had been removed from all the exit doors at 95 Parkhurst Square and that all the exit doors had been in compliance with s. 2.7.2.2 .(1) of the Ontario Fire Code by or about March 17, 2016, which was a date before the written ruling had been issued by the Ontario Fire Marshal’s Office on June 15, 2016, as well as before the compliance date of July 15, 2016, set by the Ontario Fire Marshal’s Office for complying with the December 22, 2015 inspection orders. [ 43 ] On the other hand, Hawley’s belief that exit door #7 had not contravened s. 2.7.2.2 .(1) because of his particular conversation with Yosh Imahori of the Ontario Fire Marshal‘s Office, which had occurred sometime about March 17, 2016, would have been held prior to the Ontario Fire Marshall’s Office having upheld the December 22, 2015 inspection orders on June 15, 2016.

As such, the Ontario Fire Marshall’s Office ruling to uphold the inspection orders does not appear to support Hawley’s belief that exit door #7 did not contravene s. 2.7.2.2 .(1) or that the push bar mechanism and the slide bolt mechanism are only one releasing operation for the purposes of s. 2.7.2.2 . (1) of the Ontario Fire Code . [ 44 ] Furthermore, Hawley testified that once he had found out that the two corporations were being charged with Fire Code violations, he had decided that no further changes or alterations would be made to any of the exit doors in the two buildings, as he had believed that such changes or alterations to any of the exit doors could be used by the prosecution as proof or evidence that the corporate defendants had committed violations of the Fire Code . (

d) The Appeal Of The Inspection Orders To The Ontario Fire Marshal’s Office [ 45 ] Both corporate defendants had appealed the inspection orders issued and served on them by Fire Prevention Officer Van Den Hoek on December 22, 2015, to the Ontario Fire Marshal’s Office in writing on January 5, 2016.

After both Fire Prevention Officer Van Den Hoek and the corporate defendants made their written submissions to the Ontario Fire Marshal’s Office, the Ontario Fire Marshal’s Office issued a written ruling on June 15, 2016, which had upheld the inspections orders of December 22, 2015 and set a compliance date to comply with those inspections orders by July 15, 2016. [ 46 ] The Ontario Fire Marshal’s Office’s written ruling had been sent to both Fire Prevention Officer Van Den Hoek and to the corporate defendants.

James Hawley, the director of 1385127 Ontario Inc., testified that when he had received the written ruling from the Ontario Fire Marshal’s Office, he had only quickly scanned the written ruling and then put it away in a file because Hawley had believed that the exit doors for both buildings were all in compliance by or about March 17, 2016. Hawley had also testified that within 24 hours after his conversation with Yosh Imahori, his employees had removed all the additional locks and latches from all the exit doors in both buildings that had needed to be removed. (

e) James Hawley’s Conversation With Yosh Imahori Of The Ontario Fire Marshal’s Office [ 47 ] James Hawley testimony about what Yosh Imahori of the Ontario Fire Marshal’s Office had told him out of court about releasing mechanisms for emergency exit doors and the use of fingers or hand to engage or operate the releasing mechanisms would violate the rule against hearsay, if Yosh Imahori’s out-of-court statements to Hawley are being used for the truth of their contents.

In addition, Hawley did not provide a verbatim account of what Imahori had actually informed or stated to Hawley, nor the context in which Imahori’s statement had been given. Nor did Hawley indicate that he had written down or recorded what Yosh Imahori’s out-of-court statements on or about March 17, 2016, to Hawley had entailed. 3. THE CHARGES [ 48 ] As stated in Information #7681 that was sworn on November 10, 2016, the corporate defendant, Rathcliffe Properties Limited, had been charged with 8

Part III regulatory offences of “ having locks, latches or other fastening device such that a door cannot be readily opened from the inside with no more than one releasing operation” in respect to 73 Parkhurst Square, Brampton, contrary to s. 2.7.2.2 of Ontario Fire Code ( Fire Protection And Prevention Act, 1997 ), O. Reg. 213/07 and thereby committed an offence under 28(1)(

c) of the Fire Protection And Prevention Act, 1997 , S.O. 1997, C.4 :

Count #1 Rathcliffe Properties Limited of 1020 Lawrence Avenue West, Suite 300, Toronto, Ontario, M6A 1C8 on or about the 21 st day of April, 2016 at 73 Parkhurst Square, described as Part Block 4, Plan 43M891, designated as Parts 2, 3, 4 & 5, Plan 43R23114, S/E PTS 1 & 2 PL 43R31426; in the City of Brampton, Regional Municipality of Peel, did commit the offence of contravening Division B,

Article 2.7.2.2 of the Ontario Regulation 213/07 , as amended, made under the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4 , namely having locks, latches or other fastening device such that a door cannot be readily opened from the inside with no more than one releasing operation, contrary to the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4, section 28(1) (c); Count #2 AND FURTHER THAT Rathcliffe Properties Limited on or about the 21 st day of April, 2016 at 73 Parkhurst Square, described as Part Block 4, Plan 43M891, designated as Parts 2, 3, 4 & 5, Plan 43R23114, S/E PTS 1 & 2 PL 43R31426; in the City of Brampton, Regional Municipality of Peel, did commit the offence of contravening Division B,

Article 2.7.2.2 of the Ontario Regulation 213/07 , as amended, made under the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4 , namely having locks, latches or other fastening device such that a door cannot be readily opened from the inside with no more than one releasing operation, contrary to the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4, section 28(1) (c); Count #3 AND FURTHER THAT Rathcliffe Properties Limited on or about the 21 st day of April, 2016 at 73 Parkhurst Square, described as Part Block 4, Plan 43M891, designated as Parts 2, 3, 4 & 5, Plan 43R23114, S/E PTS 1 & 2 PL 43R31426; in the City of Brampton, Regional Municipality of Peel, did commit the offence of contravening Division B,

Article 2.7.2.2 of the Ontario Regulation 213/07 , as amended, made under the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4 , namely having locks, latches or other fastening device such that a door cannot be readily opened from the inside with no more than one releasing operation, contrary to the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4, section 28(1) (c);

Count #4 AND FURTHER THAT Rathcliffe Properties Limited on or about the 21 st day of April, 2016 at 73 Parkhurst Square, described as Part Block 4, Plan 43M891, designated as Parts 2, 3, 4 & 5, Plan 43R23114, S/E PTS 1 & 2 PL 43R31426; in the City of Brampton, Regional Municipality of Peel, did commit the offence of contravening Division B,

Article 2.7.2.2 of the Ontario Regulation 213/07 , as amended, made under the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4 , namely having locks, latches or other fastening device such that a door cannot be readily opened from the inside with no more than one releasing operation, contrary to the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4, section 28(1) (c); Count #5 AND FURTHER THAT Rathcliffe Properties Limited on or about the 21 st day of April, 2016 at 73 Parkhurst Square, described as Part Block 4, Plan 43M891, designated as Parts 2, 3, 4 & 5, Plan 43R23114, S/E PTS 1 & 2 PL 43R31426; in the City of Brampton, Regional Municipality of Peel, did commit the offence of contravening Division B,

Article 2.7.2.2 of the Ontario Regulation 213/07 , as amended, made under the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4 , namely having locks, latches or other fastening device such that a door cannot be readily opened from the inside with no more than one releasing operation, contrary to the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4, section 28(1) (c); Count #6 AND FURTHER THAT Rathcliffe Properties Limited on or about the 21 st day of April, 2016 at 73 Parkhurst Square, described as Part Block 4, Plan 43M891, designated as Parts 2, 3, 4 & 5, Plan 43R23114, S/E PTS 1 & 2 PL 43R31426; in the City of Brampton, Regional Municipality of Peel, did commit the offence of contravening Division B,

Article 2.7.2.2 of the Ontario Regulation 213/07 , as amended, made under the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4 , namely having locks, latches or other fastening device such that a door cannot be

readily opened from the inside with no more than one releasing operation, contrary to the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4, section 28(1) (c); Count #7 AND FURTHER THAT Rathcliffe Properties Limited on or about the 21 st day of April, 2016 at 73 Parkhurst Square, described as Part Block 4, Plan 43M891, designated as Parts 2, 3, 4 & 5, Plan 43R23114, S/E PTS 1 & 2 PL 43R31426; in the City of Brampton, Regional Municipality of Peel, did commit the offence of contravening Division B,

Article 2.7.2.2 of the Ontario Regulation 213/07 , as amended, made under the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4 , namely having locks, latches or other fastening device such that a door cannot be readily opened from the inside with no more than one releasing operation, contrary to the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4, section 28(1) (c); Count #8 AND FURTHER THAT Rathcliffe Properties Limited on or about the 21 st day of April, 2016 at 73 Parkhurst Square, described as Part Block 4, Plan 43M891, designated as Parts 2, 3, 4 & 5, Plan 43R23114, S/E PTS 1 & 2 PL 43R31426; in the City of Brampton, Regional Municipality of Peel, did commit the offence of contravening Division B,

Article 2.7.2.2 of the Ontario Regulation 213/07 , as amended, made under the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4 , namely having locks, latches or other fastening device such that a door cannot be readily opened from the inside with no more than one releasing operation, contrary to the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4, section 28(1) (c); [ 49 ] However, on the second day of the trial, the prosecution invited the court to dismiss these 8 charges against the corporate defendant, Rathcliffe Properties Limited, since the wording in each individual charge had only expressed reference to the application of the Ontario Fire Code to those exit doors, but had failed to also expressly mention that the exit doors were also subject to the application of the Ontario Building Code .

As such, all 8 counts on Information #7681 were dismissed against Rathcliffe Properties Limited. [ 50 ] And, as stated in the Information #7821 that was sworn on November 10, 2016, the second corporate defendant, 1385127 Ontario Inc. operating as 747 Flea Market , had been charged with one

Part III regulatory offence of “ failing to comply with an inspection order dated December 22, 2015” in respect to 95 Parkhurst Square, Brampton, between July 16, 2016 and July 23, 2016, contrary to s. 30 of the Fire Protection And Prevention Act, 1997 , S.O. 1997, C.4 :

1385127 Ontario Inc. of 95 Parkhurst Square, Brampton Ontario L6T 5H5 between the 16th day of July, 2016 and the 23 rd day of July, 2016 at 95 Parkhurst Square, described as PT BLK 4 PL 43M891 DES AS PTS 2, 3, 4 & 5, PL 43R23114 S/E PTS 1 & 2 PL 43R31426; in the City of Brampton, Regional Municipality of Peel, did commit the offence of Failing to comply with an inspection order dated December 22, 2015 contrary to the Fire Protection and Prevention Act, 1997 , S.O. 1997, c.4,

section 30 . 4. APPLICABLE LAW [ 51 ] The failing to comply with the December 22, 2015 Inspection Order is an offence under s. 30 of the Fire Protection and Prevention Act, 1997 , S.O. 1997, c. 4 , which provides that: . Offence, failure to comply with inspection order 30. Every person who fails to comply with an order made under

section 21 , 25 or 26 is guilty of an offence and on conviction is liable to a fine of not more than $20,000 for every day during which the default continues, and the imposition or payment of the fine does not relieve the person from complying with the order. [ 52 ] Furthermore, the December 22, 2015 Inspection Order that was issued by Fire Prevention Officer Van Den Hoek had been done so pursuant to s. 21(1) (

g) of the Fire Protection and Prevention Act, 1997 , S.O. 1997, c. 4 , which states that a n inspector, who has carried out an inspection of land or premises under either sections 19 or 20 , may order the owner or occupant of the land or premises to take any measure necessary to ensure fire safety on the land and premises, and may for that purpose, order the owner or occupant to remedy any contravention of the Ontario Fire Code [ emphasis is mine below ]: Inspection orders 21(1) An inspector who has carried out an inspection of land or premises under

section 19 or 20 may order the owner or occupant of the land or premises to take any measure necessary to ensure fire safety on the land and premises and may for that purpose order the owner or occupant , (

a) to remove buildings or structures from the land or premises; (

b) to make structural and other repairs or alterations , including material alterations, to the buildings or structures; (

c) to remove combustible or explosive material or any thing that may constitute a fire hazard; (

d) to install and use specified equipment or devices as may be necessary to contain hazardous material on the land or premises and, in the event of a fire, to remove or transport the material;

(

e) to discontinue the manufacturing, production or fabrication of any material, device or other thing that creates or poses an undue risk of fire or explosion; (

f) to do anything respecting fire safety including anything relating to the containment of a possible fire, means of egress, fire alarms and detection, fire suppression and the preparation of a fire safety plan; (

g) to remedy any contravention of the fire code. … [ 53 ] And, where an inspection order is not complied with by the compliance date, then the person or entity required to comply with that order would be guilty of committing an offence under s. 28(1) (

c) of the Fire Protection and Prevention Act, 1997 , S.O. 1997, c. 4 , and if the entity is a corporation, then it would be subject to a maximum fine of $100,000 under s. 28(4) [ emphasis is mine below ]: Offences 28(1) Every person is guilty of an offence if he or she, (

a) hinders, obstructs or interferes with the Fire Marshal, an assistant to the Fire Marshal or a fire chief in the exercise of his or her powers and duties; (

b) prevents an inspector from entering land or premises under

section 19 or 20, refuses to answer questions on matters relevant to the inspection or provides the inspector with information, on matters relevant to the inspection, that the person knows, or ought reasonably to know, to be false or misleading; (

c) subject to subsection (2) contravenes any provisions of this Act or the regulations ; or (

d) refuses or neglects to obey or carry out the directives of the Fire Marshal, an assistant to the Fire Marshal or a fire chief given under the authority of this Act. Same

(2) A person who contravenes a provision in

Part IX of this Act is not guilty of an offence. Penalty

(3) An individual convicted of an offence under subsection (1) is liable to, (

a) in the case of an offence other than one described in clause (b), a fine of not more than $20,000 or imprisonment for a term of not more than one year, or both; and (

b) in the case of an offence for contravention of the fire code, a fine of not more than $50,000 or imprisonment for a term of not more than one year, or both.

Same

(4) A corporation convicted of an offence under subsection (1) is liable to a fine of not more than $100,000 . Offence, director or officer of corporation

(5) A director or officer of a corporation who knows that the corporation is violating or has violated a provision of the fire code is guilty of an offence and on conviction is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. Liability of directors

(6) Despite subsections (1) and (3), every director or officer of a corporation who knowingly commits an offence under subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. [ 54 ] Furthermore, the s. 2.7.2.2 .(1) provision of the Ontario Fire Code , which deals with the releasing door hardware mechanism for exit doors that is under scrutiny in this trial, is contained in

Part 2 of that Code. Moreover, ss. 2.1.1.1. and 2.1.1.2. of the Fire Code states that

Part 2 of the Ontario Fire Code “ applies to buildings ” and “ provides measures for the fire safety of persons and buildings ” , including “ the maintenance of certain life safety systems in buildings” [ emphasis is mine below ]: Scope 2.1.1.1. This Part provides measures for the fire safety of persons and buildings , including the elimination or control of fire hazards in and around buildings, the maintenance of certain life safety systems in buildings , the establishment of a fire safety plan in certain buildings and the installation of smoke alarms and carbon monoxide alarms. Application 2.1.1.2. Subject to

Article 2.1.1.3., this Part applies to buildings , premises, tents, air-supported structures and outdoor public amusement areas. [ 55 ] Furthermore, the phrase “ Every exit door required by this Code ” that has been impugned by the corporate defendant is contained in s. 2.7.2.2 .(1)(

a) of the Ontario Fire Code which is contained in the

Section 2.7 and under the Heading “ Safety To Life ”, which is then contained in Subsection 2.7.2 and under the Heading “ Door Hardware ”. [ 56 ] In addition, the stipulation provided for under s. 2.7.2.2 .(1) of the Ontario Fire Code that “ locking, latching and other fastening devices shall be such that a door can be readily opened from the inside with no more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism on ”, applies to “ Every exit door required by this Code ”, according to s. 2.7.2.2 .(1)(a) [ emphasis is mine below ]: Requirements for locking, latching and fastening devices

2.7.2.2.

(1) Subject to Sentences (2) and (3), locking, latching and other fastening devices shall be such that a door can be readily opened from the inside with no more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism on , (

a) Every exit door required by this Code … [ 57 ] Moreover, in respect to the direction that emergency exit doors must open toward is provided for under s. 2.7.2.1.(1) of the Ontario Fire Code , which stipulates that “ Every exit door is required to be designed and installed so that, when the latch is released, the door will open in the direction of exit [ emphasis is mine below ]: 2.7.2.1.

(1) Every exit door shall be designed and installed so that , when the latch is released, the door will open in the direction of exit travel under a force of not more than 90 N, applied at the knob or other latch releasing device. [ 58 ] In addition, s. 1.2.1.1. of the Ontario Fire Code legally obligates the “owner” of the building or premises to carry out the provisions of the Ontario Fire Code [ emphasis is mine below ]: Owner’s responsibility 1.2.1.1. Unless otherwise specified, the owner is responsible for carrying out the provisions of this Code . Compliance with Parts 2 and 3 1.2.1.2.

Compliance with Parts 2 and 3 is required only as it relates to the use of alternative solutions as set out in Subsection 1.2.2. [ 59 ] The term “owner” for the purposes of the Ontario Fire Code is defined under s. 1.4.1.2 ., which includes any person, firm or corporation having control over any portion of the building or property under consideration and includes the persons in the building or property, and as such the corporate defendant, 1385127 Ontario Inc., as the principal tenant of the two buildings at 73 Parkhurst Square and 95 Parkhurst Square, meets the definition of “owner” and obligates the corporate defendant to carry out the provisions of the Ontario Fire Code : Defined terms 1.4.1.2.

The words and terms used in this Code that are in bold face, and either in upper and lower case or in lower case, have the following meanings: … Owner means any person, firm or corporation having control over any portion of the building or property under consideration and includes the persons in the building or property.

[ 60 ] Furthermore, particular words, terms, and phrases are defined in the Ontario Fire Code and are contained in s. 1.4.1.2 . of the Code . The relevant defined words, terms, or phrases that apply to this proceeding are found below: Non-defined terms 1.4.1.1.

(1) Definitions of words and phrases used in this Code that are not included in the list of

definitions in

Article 1.4.1.2. have the meanings that are commonly assigned to them in the context in which they are used, taking into account the specialized use of terms with the various trades and professions to which the terminology applies.

(2) Despite Sentence (1), words and phrases may be assigned other meanings where specifically noted in another provision of this Code. Defined terms 1.4.1.2. The words and terms used in this Code that are in bold face, and either in upper and lower case or in lower case, have the following meanings: Means of egress means a continuous path of travel provided for the escape of persons from any point in a building or contained open space to a separate building, an open public thoroughfare or an exterior open space protected from fire exposure from the building and having access to an open public thoroughfare.

Means of egress includes both exits and access to exits. … Order means an order made under subsection 21(1) of the Fire Protection and Prevention Act, 1997 . Owner means any person, firm or corporation having control over any portion of the building or property under consideration and includes the persons in the building or property. … Mercantile occupancy means the occupancy or use of a building or part thereof for the displaying or selling of retail goods, wares or merchandise. … [ 61 ] In addition, reference had been made to the Ontario Building Code during the trial.

The Ontario Building Code also has provisions governing door release hardware on exit doors that are similar to the ones contained in the Ontario Fire Code . They are set out in ss. 3.4.6.16 and 9.9.6.8. of the Building Code [ emphasis is mine below ]: 3.4.6.16. Door Release Hardware

(1) Except for dwelling units , except for devices on doors serving a contained use area or an impeded egress zone designed to be released in conformance with

Article 3.3.1.12., and except as permitted by Sentence (4), locking, latching and other fastening devices on every exit door shall permit the door to be readily opened from the inside with not more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism .

(2) If a door is equipped with a latching mechanism, a device that will release the latch and allow the door to swing wide open when a force of not more than 90 N is applied to the device in the direction of travel to the exit shall be installed on, (

a) every exit door from a floor area containing an assembly occupancy having an occupant load more than 100, (

b) every door leading to an exit lobby from an exit stair shaft, and every exterior door leading from an exit stair shaft in a building having an occupant load more than 100, and (

c) every exit door from a floor area containing a high hazard industrial occupancy.

(3) Except as required by Sentence 3.8.3.3.(7), every exit door shall be designed and installed so that, when the latch is released, the door will open under a force of not more than 90 N, applied at the knob or other latch releasing device .

(4) Except as permitted by Sentence 3.3.1.12.(6), electromagnetic locks that do not incorporate latches

[…]