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Fire-code enforcement

“Ultimately, burning buildings and their occupants live or die according to code and it is very difficult for us to outperform that reality.”
– Alan Brunacini Sr., June 2008

That statement from Phoenix Fire Chief Alan Brunacini was a precursor to the change slowly occurring in the Canadian fire service: after years of unnecessary and preventable fire deaths, the fire service is beginning to recognize the critical role that the enforcement of fire and building codes plays in the safety of the public and responding firefighters.

Niagara Falls Deputy Chief Jim Jessop says charging landlords who fail to comply with fire codes is a necessary step to reduce fire fatalities and improve life safety for firefighters and others.

The movement toward enforcing the requirements of the Ontario Fire Code – and, ultimately, other provincial fire codes – dates back more than 25 years. As former Ontario fire marshal Pat Burke said in his quest to strengthen code enforcement, the fire service and others need to become “intolerant to code violations that can immediately impact the life safety of building occupants and the safety of firefighters during operations.”

The Report of the Public Inquiry into Fire Safety In Highrise Buildings, released in 1983 by the Hon. John Webber, noted the failure to enforce the fire code as an impediment to “the ability of firefighters to engage successfully in suppression and rescue.” Webber identified “inadequate inspections” and “improper functioning of fire-safety equipment such as emergency power, fire alarms and fire pumps” as conditions that can exacerbate fire situations and increase the risk faced by firefighters. Similarly, Webber noted “reluctance by the fire service at large to enforce the Ontario Fire Code.”

The report recommended, among other things, that “the Ontario Fire Code should be more actively enforced, and the courts should impose substantially increased penalties for breaches of the Ontario Fire Code.”

Regrettably, 25 years later, the majority of the fire service, according to statistics from the Ministry of the Attorney General, has not heeded those recommendations.

Although most of these judicial decisions and inquests have happened in Ontario, all Canadian fire departments should heed the decisions of Canada’s high court and the recommendations of the National Institute for Occupational Safety and Health (NIOSH) reports described below to ensure life safety for occupants and firefighters.

In 2002, the City of Niagara Falls, Ont., adopted a zero-tolerance approach to violations of the Ontario Fire Code that have an immediate impact on life safety and firefighter safety  – smoke alarms, fire alarm systems, sprinkler systems, locked exits, emergency power systems, vacant buildings not secured against unauthorized entry – for three reasons.

1. Public safety
Albert Einstein defined insanity as doing the same thing over and over again and expecting different results. This describes the approach taken by the fire service, which has repeatedly granted time for compliance and hands out smoke alarms to the same building owners over and over again. People do not treat preventable fire deaths with the same outrage as they do, for example, deaths resulting from drinking and driving; the fire service must shoulder considerable blame for this public apathy. Jim Lee, administrative assistant to the general secretary-treasurer of the International Association of Fire Fighters, described this seemingly universal state of mind bluntly in June 2008.

“If a person staggers out of a bar and walks home, and lights up a deep fryer on the stove and the house burns down, and that kills a child, it’s called an accident and people hold a fundraiser for the person,” Lee said. 

Indeed, the death of a child in a fire where smoke alarms were not operating or installed does not elicit the same outcry for punishment as the death of a child killed by a drunk driver. If the goal of the fire service is public safety, then fire departments and fire officials have to adopt the same philosophy and attitude with respect to smoke alarms and other code violations that have an immediate impact on life safety as police forces and society have adopted with respect to drinking and driving, seatbelts and aggressive driving.

A review of the findings of the coroner’s inquest into the worst multi-fatal fire in Canada in the last 25 years confirms this need for code enforcement. On Dec. 23, 1989, 10 people died in a rooming house known as the Rupert Hotel in downtown Toronto. Although the cause of death for the 10 people was listed as smoke inhalation, the circumstances surrounding the deaths are grim.

“In addition to the actual lighting of the newspaper, there are other circumstances that have to be considered,” the coroner’s inquest said. “The fire alarm was dismantled, the building had a history of non-compliance with regards to the fire code, including retrofit, lack of fire extinguishers, accessibility of fire escapes and exits, lack of fire separations, lack of closures on doors . . .”

2. Firefighter safety
In March 2004, the National Fallen Fire Fighters Foundation in the United States hosted a firefighter life-safety summit to address the need for change in the fire service. Through this summit, a document entitled 16 Firefighter Life Safety Initiatives was developed to ensure that everyone goes home. The document, among other initiatives, stresses the need to:

• Define and advocate the need for a cultural change within the fire service relating to safety, incorporating leadership, management, supervision, accountability and personal responsibility.
• Strengthen advocacy for the enforcement of codes and the installation of home fire sprinklers.

A review of NIOSH reports involving firefighter fatalities and critical injuries over the last 20 years reveals a disturbing trend that has been given short shrift by all members of the fire service; failing to enforce the code directly contributes to firefighter fatalities and injuries.

Here are summaries of a few of the NIOSH reports that support this position.

• Pennsylvania – March 2004 – A fire at a church killed two firefighters and critically injured 29 firefighters. The subsequent NIOSH investigation made the following recommendation: “Municipalities should enforce current building codes to improve the safety of the occupants and firefighters.”

• New York – January 2005 – A fire at a four-storey apartment building killed one firefighter and critically injured four firefighters. The subsequent NIOSH investigation made the following recommendation: “Building owners should follow current building codes for the safety of occupants and firefighters.”

• Charleston, S.C. – August 2007 – A fire at a sofa store killed nine firefighters. 

The subsequent NIOSH investigation recommended:
At a minimum, all state and local jurisdictions adopt a building and fire code based upon one of the model codes, covering new and existing high fuel-load mercantile occupancies, and update local codes as the model codes are revised. “If current model codes had been adopted and applied retroactively to high fuel-load mercantile occupancies, the model codes would have required the Sofa Super Store’s main showroom and warehouse be sprinklered.”
All state and local jurisdictions implement aggressive and effective fire inspection and enforcement programs. “Effective inspections and enforcement of the 2006 model building and fire codes available at the time of the Sofa Store fire would have required the door and walls of the showrooms and warehouse to be upgraded or would have required sprinklers to be installed. Either of those measures would go a long way to toward preventing similar tragedies in the future.”

3. Legal liability
Fire officials who fail to discharge their duties place their municipalities in positions of liability and at risk of lawsuits. 

The courts have been consistent over the last 20 years in decisions against municipalities in civil torts involving municipal inspectors who fail to exercise the standard of care that would be expected of an ordinary, reasonable and prudent inspector in the same circumstances. The Supreme Court of Canada, in two cases, Nielsen v. Kamloops and Ingles v. Tutkaluk, outlined the test to which municipalities will be judged when determining and apportioning liability for municipal inspections. This excerpt from Ingles v. Tutkaluk outlines these principles:

“Once it is determined that an inspection has occurred at the operational level, and thus that the public actor owes a duty of care to all who might be injured by a negligent inspection, a traditional negligence analysis will be applied. To avoid liability, the government agency must exercise the standard of care in its inspection that would be expected of an ordinary, reasonable and prudent person in the same circumstances. Recently, in Ryan v. Victoria, supra, at para. 28, Major J. reaffirmed that the measure of what is reasonable in the circumstances will depend on a variety of factors, including the likelihood of a known or foreseeable harm, the gravity of that harm and the burden or cost which would be incurred to prevent the injury.”

A case involving the Town of Parry Sound, Ont., is an example of a lower court – the Ontario Court of Justice – applying these principles involving a civil action brought against a municipal fire department.

In Smith v. Jacklin, the municipality advised the owner that the building had violated various provisions of the Ontario Fire Code, including the failure to provide a second exit from the second and third floors. The tenant could not evacuate the building because of a fire. The tenant suffered second-degree burns to 30 per cent of his body and spent 41 days in the hospital.

In its judgment, the court said: “The defendant municipality owed a duty to the plaintiff and his co-tenants to enforce the provisions of the Ontario Fire Code, as did the owner himself. Such a failure contributed to the plaintiff’s injuries and the municipality was therefore liable.”

The Niagara Falls Fire Service no longer tolerates a culture that reinforces complacent attitudes and the subconscious acceptance of unnecessary life-safety risks to firefighters responding to buildings in the municipality. Indeed, it does not expose its firefighters to unacceptable risk by permitting owners to violate the fire code.

The fire service has to be more proactive in its approach to ensuring life safety in the buildings of Canadian municipalities and become less tolerant of those who would thumb their noses at life-safety requirements.

Jim Jessop is a deputy chief with the Niagara Falls Fire Department. He holds an honours BA from the University of Western Ontario. Jim is completing his masters in public administration at the University of Western Ontario and is enrolled in the executive fire officer program at the United States Fire Administration.