Appendix A - Division C

A-2.2.   Administration. The National Fire Code of Canada is intended for use by lawmakers at various levels of government. Provisions regarding administration and enforcement are usually included in provincial or territorial legislation; thus the NFC contains only a few such provisions, which can serve as models. However, to aid municipalities adopting the NFC in the absence of such provincial or territorial legislation, this Appendix Note offers various enforcement options and lists the relevant legislative considerations for each option. This approach has been adopted for the following reasons:

1. Powers of enforcement that are available to more senior levels of government are not generally available to municipalities.
2. Powers of enforcement vary from one municipality to another.
3. The nature and extent of the enforcement powers to be employed by governments are not technical issues, but are rather policy issues for the appropriate government to decide.

Application

The application of the NFC to the upgrading of existing facilities to provide an acceptable degree of life safety should be based on the judgment of the enforcement authority, who must deal with each case on its own merits. The legislative authority should specify the extent of such retroactive application and provide for the exercise of the necessary discretionary judgment on the part of the enforcement officials.

The NFC relies on the owner or the owner's authorized representative to comply with the Code requirements. In preparing the legislation to be adopted, the legislative authority may wish to relieve an owner of the responsibility to be “automatically” in compliance with each new edition of the Code and the various standards referenced therein. This can be done in various ways, for example, by establishing implementation dates, such that facilities constructed after that date but meeting the requirements of the Codes in effect at that time, need not be upgraded, provided the level of safety is acceptable, or by providing for a scheduled upgrade over a period of time. An owner is expected to communicate with the authority having jurisdiction prior to proceeding with upgrading, at which time the authority may use discretion to accept alternatives.

Authority Having Jurisdiction

The NFC uses the phrase “authority having jurisdiction” as a general term to designate the person(s) exercising many enforcement functions and powers. A fire safety law should specifically identify the relevant authority or authorities having jurisdiction by defining the phrase “authority having jurisdiction” to mean the specific official(s) who will exercise such functions and powers.

Enforcement Options

There are four areas of concern related to the enforcement of prescribed fire safety standards: the inspection of premises, acceptances (including licences and permits), offences and penalties, and remedial orders.

Senior levels of government have legislative powers to enact a wide variety of enforcement provisions within the above-mentioned areas. Municipal governments, however, usually have somewhat narrower powers; accordingly, any municipality proposing to enact enforcement provisions should first obtain legal advice confirming that it has the requisite powers to do so (this will not ordinarily be a problem with respect to offences and penalties, since that is the usual mode of compelling compliance with a municipal bylaw).

Municipal, territorial and provincial governments should take into account the impact of federal legislation on topics similar to those included in the NFC prior to its enactment.

Inspection of Premises

Fire safety laws usually include provision for the inspection of premises, the relevant issues of which are as follows:

1. whether all premises or only some may be entered by an inspector
2. whether an inspector must have a warrant or a court order before entering any premises without the consent of the owner or occupant
3. for what purposes premises may be inspected
4. at what times an inspector may inspect premises (for example, at any time, at any reasonable time, or only during daylight hours)
5. what persons, if any, may accompany the inspector
6. whether the inspector should have the power to conduct any tests on the premises relevant to the purposes of the inspection
7. whether the inspector should have the power to collect and take away for analysis anything relevant to the purposes of the inspection and, if so, what obligation the inspector may have with respect to the return thereof
8. what obligation should be imposed upon persons such as the owner or the occupant of the premises to provide information and assistance to the inspector
9. whether it should be an offence for any person to obstruct the inspector in the performance of his or her duties

Acceptances (Including Licences and Permits)

The NFC considers that fire safety plans and some activities, materials, devices, processes, products, procedures or structures will require acceptance by an authority having jurisdiction. In some cases the acceptance process may be formalized by a licence or permit; in other cases, the acceptance may be less formal.

In cases where the fire safety law requires an acceptance, the relevant considerations are:

1. what formalities should be prescribed for application
2. what information or materials must accompany the application
3. what criteria should be prescribed for acceptance in specific cases (for example, the minimum performance characteristics of an extinguisher, or the minimum length of apprenticeship required for a licence to carry on a particular trade)
4. what conditions may be attached to the acceptance
5. the circumstances, if any, in which an acceptance may be suspended or cancelled
6. the rights of appeal, if any, in case of a refusal, suspension or revocation of an acceptance
7. the legal consequences of not having an acceptance when so required by the fire safety law

The NFC assumes that acceptance in the form of a permit or licence will be required in the following circumstances:

1. open air fires
2. the operation of fuel-dispensing stations and bulk plants
3. the transportation of flammable and combustible liquids
4. fireworks displays
5. activities that create a hazard not anticipated in the original design of a building or facility

In addition, the NFC assumes that personnel involved in the installation and maintenance of fire alarm, fire detection and fire suppression systems and the recharging of portable extinguishers will be qualified and licenced to perform such activities.

Offences and Penalties

The most common kind of enforcement provision is the prescription of offences, with penalties upon conviction. The relevant issues for offences and penalties are as follows:

1. what conduct should be prescribed as an offence (fire safety laws usually consider that any person who contravenes any provision of the law is guilty of an offence; in addition, where the fire safety law authorizes the issuing of remedial orders, it will usually consider that any person who fails to comply with a lawful order is guilty of an offence)
2. whether the range of penalties should be uniform for all offences or should vary in severity
3. the nature and extent of the penalty or penalties

Remedial Orders

A possible enforcement option in the event of a contravention of the fire safety law is a provision authorizing persons to issue orders requiring that premises be closed or that activities cease, that the building be evacuated where an immediate danger to life or property exists, or even that an act already done be undone. The relevant considerations in provisions regarding the issuing of remedial orders are:

1. in what circumstances and by whom can a remedial order be issued (the lawmaker may wish to draw a distinction between circumstances where an inspector may issue an order and circumstances where an order can only be issued by a court)
2. what can be ordered and in what circumstances
3. in what circumstances, if any, an order shall take immediate effect
4. except for those cases where an order is to take immediate effect, when the order should take effect
5. what person may be required to comply with a remedial order
6. the rights of appeal, if any, in respect of some or all remedial orders
7. the consequences of failure to comply with a remedial order

Notification

The NFC assumes that the authority having jurisdiction will be notified in the following situations:

1. when activities that could lead to a fire or an explosion are to be undertaken
2. when fire protection equipment is to be taken out of service
3. prior to the resurfacing of bowling alleys
4. when a loss is detected from a storage tank containing flammable or combustible liquids
5. prior to the removal from service of an underground storage tank for flammable or combustible liquids
6. prior to fumigation being carried out in a building

A-2.3.1.    Documentation of Alternative Solutions. Beyond the purposes of demonstrating compliance and acquiring a building permit, there are other important reasons for requiring that the proponent of an alternative solution submit project documentation (i.e. a compliance report) to the authority having jurisdiction and for the authority having jurisdiction to retain that documentation for a substantial period following the construction of the building or facility:

• Most jurisdictions require that a building or facility be maintained in compliance with the codes under which it was built. Alternative solutions made possible by objective-based codes may have special maintenance requirements, which would be described in the documentation.
• Documentation helps consultants perform code compliance assessments of existing buildings or facilities before they are sold and informs current owners or prospective buyers of existing buildings or facilities of any limitations pertaining to their future use or development.
• Documentation provides design professionals with the basic information necessary to design changes to an existing building or facility.
• An alternative solution could be invalidated by a proposed alteration to a building or facility. Designers and regulators must therefore know the details of the particular alternative solutions that were integral to the original design. Complete documentation should provide insight as to why one alternative solution was chosen over another.
• Documentation is the “paper trail” of the alternative solution negotiated between the designer and the regulator and should demonstrate that a rational process led to the acceptance of the alternative solution as an equivalency.
• It is possible that over time a particular alternative solution may be shown to be inadequate. It would be advantageous for a jurisdiction to know which buildings or facilities included that alternative solution as part of their design: documentation will facilitate this type of analysis.
• Project documentation provides important information to a forensic team that is called to investigate an accident or why a design failed to provide the level of performance expected.

This subject is discussed in further detail in “Recommended Documentation Requirements for Projects Using Alternative Solutions in the Context of Objective-Based Codes,” which was prepared for the CCBFC Task Group on Implementation of Objective-Based Codes and is available at www.nationalcodes.ca.