The Nova Scotia Regulatory and Appeals Board has overturned additional fire-safety requirements imposed on a Dartmouth performance venue, finding that hosting live music did not, on the evidence before it, put the former church into a more demanding building-code category.
Halifax Art and Performance Association succeeded in removing requirements added by the Office of the Fire Marshal, including a building-wide sprinkler system and increased fire separations. But the board upheld the municipal fire inspector’s original corrective order, leaving substantial safety work to be addressed.
The June 25, 2026 merits decision, 2026 NSRAB 89, was followed by a September 29 costs ruling, 2026 NSRAB 135. The later decision required every party to bear its own costs and explained why winning a fire-safety appeal does not ordinarily entitle a party to recover legal expenses.
An appeal that increased the safety demands
The association operates a venue in a former church at 100 Ochterloney Street. The building, constructed in 1921, retained its pews after conversion. Its former altar became a performance area; other changes included bars, lighting and sound equipment. A former gymnasium continued to be used by a church.
In June 2025, a Halifax Regional Fire & Emergency inspector issued an order identifying five fire-code contraventions. It required measures including 45-minute fire separations between floors and around a rear stairwell, repairs to damaged separations, fire-rated doors, exit improvements and a report showing no fire-alarm deficiencies.
The inspector treated the building as an A2 assembly occupancy. When the association appealed to the Fire Marshal, that office concluded that the main level instead qualified as A1, the category for assembly spaces intended for the production and viewing of performing arts.
That classification mattered throughout the building. Where more than one major occupancy applies, the board explained, the code generally requires compliance with the most restrictive category. The Fire Marshal therefore added sprinklers throughout and increased required fire separations from 45 minutes to one hour. It also found a code-defined stage, triggering additional protective measures.
The association challenged those additions. The Fire Marshal defended the A1 classification and stage finding; the municipality sought confirmation of its inspector’s order. By its final submissions, the association also asked to reinstate that original order.
A hearing beyond the original record
The board said this appeared to be its first appeal from a Fire Marshal decision. It therefore addressed how such an appeal should work.
The association sought a fresh hearing without deference to the earlier decision. The Fire Marshal favoured a hybrid process with some deference, while the municipality supported a hybrid process without deference.
The board adopted an independent review that could consider the original record and relevant additional evidence. It pointed to its broad remedial powers, statutory authority over legal and factual questions, and ability to hear witnesses. The Fire Marshal’s initial appeal process, by contrast, requires a summary review but not necessarily an oral hearing.
The board would give appropriate weight to fire-safety expertise when interpreting the codes or choosing a remedy. That respect did not prevent it from correcting an erroneous interpretation. The association still had to show, on a balance of probabilities, that the decision should change.
Why live performances did not settle the classification
Evidence about actual use proved important. The association supplied a list of 169 events between April 2023 and October 2025. Live music accounted for 95; only eight could be considered theatre-related. The board accepted association president Ivano Andriani’s evidence that the premises were used primarily for live music, rather than the Fire Marshal’s understanding that theatre events accounted for about half the main level’s use.
The decisive distinction concerned production. The board accepted that live music and many other events were performing arts. But it concluded that the A1 definition required both production and viewing, not simply an audience watching performers.
Reading the code in context, the board found that production involved pre-performance development, such as preparing scenery and costumes and rehearsing performers, as well as carrying out the performance. It rejected the Fire Marshal expert’s interpretation that a musician producing sound was enough.
There was no evidence that any part of the building was used for that pre-performance development. It contained no workshops or other areas for making sets, costumes or props. The board found the building properly classified as A2.
The sprinkler conclusion was specific to these premises. The reasons explained that an A2 classification did not require sprinklers in this particular building because of its size. They did not create a general sprinkler exemption for concert venues.
A performance area was not a code-defined stage
The board separately considered the National Building Code’s definition of a stage. Its requirements included a space primarily designed for theatrical performances, provision for quick-change scenery and overhead lighting, and controls for a wide range of lighting and sound effects.
The deputy fire marshal acknowledged that the overhead-lighting requirement was not met. There was no catwalk, frame, truss or comparable structure above the performance area to support it. That failure alone was enough to defeat the stage finding.
The board also found the other disputed elements unproven. A small space behind a curtain and rooms used by performers did not establish provision for quick-change scenery merely because they might potentially be used that way. The existing sound booth, colour-changing lights and occasional portable lights did not establish the required range of effects in the context of a theatrical stage.
With neither an A1 occupancy nor a code-defined stage established, the additional requirements imposed by the Fire Marshal could not stand.
The association also alleged procedural unfairness in the earlier appeal. The board did not overturn the decision on that basis. It noted that no authority had been provided establishing its jurisdiction to do so for procedural-fairness reasons, and that its own process had allowed the association to present additional evidence and submissions.
Original order remained; no costs shifted
The merits ruling gave the association 60 days from the board’s order to comply with the reinstated inspector’s requirements, or another period agreed with the inspector. The published decisions do not establish whether that work has since been completed or whether a different compliance schedule was agreed. No closure order had been issued in the case.
The later costs dispute ran in both directions. The municipality said it had incurred unnecessary expense because the association withdrew proposed experts and only later stopped challenging the inspector’s order. The association sought $9,000 from the Fire Marshal, alleging that its handling of the matter had prolonged the hearing. The Fire Marshal opposed shifting costs.
The board held that parties to Fire Safety Act appeals ordinarily bear their own costs unless exceptional circumstances justify a departure. Its discretion was broader than the specific examples in its costs rules, but success on the merits or rejection of another party’s evidence was insufficient.
Here, withdrawing the experts and narrowing the challenge had reduced the hearing and subsequent work. The Fire Marshal was permitted, but not required, to obtain the municipal officials’ expertise. Losing the code-interpretation arguments did not itself warrant costs against that office.
The board found the parties’ conduct typical of proceedings before it. It also cautioned that routine costs awards could discourage appeals that clarify public-safety issues affecting other buildings and the work of fire officials.
