Akintunde v. Conard, 2019 ONBCC 29

Citation: Akintunde v Conard 2019 ONBCC 29

Ruling No.: 19-29-1549

Application No.: B-2019-24

BUILDING CODE COMMISSION

IN THE MATTER OF Subsection 24(1) of the Building Code Act, S.O. 1992, c. 23, as amended.

AND IN THE MATTER OF Sentence 7.5.9.2.(1), Article 11.5.1.1. and Sentence 12.2.1.1.(3) and Table 11.5.1.1.C of Division B of the Building Code and Sentence 1.3.5.1.(2) of Division C of the Building Code of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Akinbola Akintunde for the resolution of a dispute with Rick Conard, Chief Building Official to determine whether as part of a basement renovation, the proposal to use an air admittance valve in the laundry room to vent fixtures, and to reduce the amount of insulation to match the existing framing in the ceiling of the laundry room, as well as, the proposal not to excavate the basement floor for the purposes of an underground plumbing inspection, provides sufficiency of compliance with Sentence 7.5.9.2.(1), Article 11.5.1.1. and Sentence 12.2.1.1.(3) and Table 11.5.1.1.C of Division B of the Building Code and Sentence 1.3.5.1.(2) of Division C of the Building Code at 40 Denlow Drive, Brampton, Ontario.

APPLICANT Akinbola Akintunde

Homeowner

Brampton, Ontario

RESPONDENT Rick Conard

Chief Building Official

City of Brampton, Ontario

PANEL Matthew Graham, Chair Designate

Leszek Muniak

Alexandra Chow

PLACE City of Toronto, Ontario

DATE OF HEARING December 12, 2019

DATE OF RULING December 12, 2019

APPEARANCES Akinbola Akintunde

Homeowner

Brampton, Ontario

The Applicant

Rick Conard

Chief Building Official

City of Brampton, Ontario

The Respondent

Bruce West

Supervisor, Inspections

City of Brampton, Ontario

Designate for the Respondent

RULING

1. Particulars of Dispute

The Applicant has applied for a building permit under the Building Code Act, 1992, to renovate and existing basement apartment at 40 Denlow Drive, Brampton, Ontario.

The subject building is an existing two storey, Group C occupancy building with a building area of 78.97 m².

The construction in dispute involves the renovation of the existing basement apartment. More specifically, the dispute centers on three issues as follows: the proposal to use an air admittance valve in the laundry room to vent fixtures, the proposal to reduce the amount of insulation installed in the laundry room in order for it to match the existing framing in the ceiling, and whether the proposal not to excavate the basement floor for the purposes of an underground plumbing inspection. The dispute before the Commission is to determine whether the above three proposals provide sufficiency of compliance with Sentence 7.5.9.2.(1), Article 11.5.1.1. and Sentence 12.2.1.1.(3) and Table 11.5.1.1.C of Division B of the Building Code and Sentence 1.3.5.1.(2) of Division C of the Building Code.

At the outset of the hearing, the parties were advised that in accordance with the Commission’s mandate set out in section 24(1) of the Building Code Act, the Commission may resolve disputes related to sufficiency of compliance with the technical requirements of the Building Code. As Division C of the Building Code contains administrative provisions, the Commission determined that it did not have the jurisdiction to hear the matter related to Sentence 1.3.5.1.(2) of Division C of the Building Code related to prescribed inspections.

2. Provisions of the Building Code in Dispute

7.5.9.2. Air Admittance Valves:

(1) Air admittance valves shall only be used to vent,

(a) fixtures in buildings undergoing renovation, and

(b) installations where connection to a vent may not be practical.

(2) The air admittance valves shall be located,

(a) above the flood level rim of the fixture it serves,

(b) within the maximum developed length permitted for the vent,

(c) not less than 150 mm above insulation materials, and

(d) installed in a location not subject to back pressure.

(3) Air admittance valves shall,

(a) only vent fixtures located on the same storey, and

(b) be connected to the horizontal fixture drain.

11.3.1.1. Material Alteration or Repair of a Building System

(1) Where an existing building system is materially altered or repaired, the performance level of the building after the material alteration or repair shall be at least equal to the performance level of the building prior to the material alteration or repair. (See Appendix A.)

11.5.1.1. Compliance Alternatives partially states the following:

(1) A compliance alternative shown in Table 11.5.1.1.A., 11.5.1.1.B., 11.5.1.1.C., 11.5.1.1.D/E. or 11.5.1.1.F. may be substituted for a requirement contained in Part 3, 4, 6 or 8 where the chief building official is satisfied that compliance with the requirement is impracticable because,

(a) of structural or construction difficulties, or

(b) it is detrimental to the preservation of a heritage building.

(2) A compliance alternative shown in Table 11.5.1.1.A., 11.5.1.1.B., 11.5.1.1.C., 11.5.1.1.D/E. or 11.5.1.1.F. may be substituted for a requirement contained in Part 9 or 12 without satisfying the chief building official that compliance with the requirement is impracticable.

12.2.1.1. Energy Efficiency

(3) Except as provided in Sentence (4), the energy efficiency of a building or part of a building of residential occupancy that is within the scope of Part 9 and is intended for occupancy on a continuing basis during the winter months shall,

(a) meet the performance level that is equal to a rating of 80 or more when evaluated in accordance with NRCan, "EnerGuide for New Houses: Administrative and Technical Procedures", or

(b) conform to Chapters 1 and 2 of MMAH Supplementary Standard SB-12, "Energy Efficiency for Housing".

3. Applicant’s Position

The Applicant submitted that he purchased the subject house in June of 2008, which had an existing basement apartment. The Applicant submitted that he became aware that the basement apartment was not a legal apartment many years later while he was renting it to a tenant. However, he stated that when he received notice from the City, the tenant at the time was evicted so that the basement apartment could be renovated to achieve Code compliance and become a registered legal basement apartment.

The Applicant explained that he obtained zoning approvals in 2018 but encountered many difficulties and delays in dealing with the building department to obtain a building permit to complete the work required to legalize the basement apartment.

The Applicant submitted that based on conversations with his neighbour who is an original owner having an identical model to his home, he believes the basement was finished when the house was originally built. The Applicant submitted that the building was constructed in 1980 and inspections were performed at that time. However, the City of Brampton advised the Applicant that there are no official records of the underground plumbing and as such, the City of Brampton is requesting an excavation of the basement floor for the purpose of conducting an underground plumbing inspection.

The Applicant submitted that there are three issues at dispute before the Commission and they are as follows:

1. The City of Brampton is not permitting the use of an air admittance valve in a laundry room despite the provision provided in Sentence 7.5.9.2.(1) of Division B of the Building Code.

2. The City of Brampton is asking for an underground Plumbing Inspection since there is no record that the underground plumbing was approved at the time the building was constructed in 1980.

3. The City of Brampton is denying the provision allowed in Article 11.5.1.1. of Division B with compliance alternative C199 as it related to Sentence 12.2.1.1.(3), which permits the installation of lesser amounts of insulation and vapour barrier where the framing systems are being altered to match the existing framing.

The Applicant submitted that the City of Brampton is not permitting the use and installation of an air admittance valve in the laundry room, because it is their opinion that it would be practical to core through 12 -14 inches of poured concrete in order to tie into an existing vent. The Applicant explained that the air admittance valve installed, is a BMEC authorized product, which has been installed in accordance with the authorization. The Applicant submitted that he sought the opinion of a licenced plumber and was advised that coring through 12 -14 inches of poured concrete and steel beam would be impractical to tie into an existing vent in the building and that an air admittance valve would be a practical option to achieve compliance with the Code.

In response to questions, the Applicant confirmed that the air admittance valve installed is limited to venting only two fixtures within the same room: the laundry tub and washing machine.

In response to questions, the Applicant confirmed the air admittance valve has been installed in accordance with a BMEC authorization and further, is approved for use in Ontario.

The Applicant submitted that the City of Brampton is requesting that he upgrade the insulation in the laundry room space located in the basement to R31, which was originally insulated to approximately R14. The Applicant explained that at a pre-construction inspection he was advised that the ceiling in the laundry room would need to be insulated to R31 in order to achieve compliance with the Building Code. As a result, the Applicant stated that he removed the existing batt insulation and due to existing framing was only able to insulate enough to achieve a value of R20. The Applicant submitted that as per Article 11.5.1.1. of Division B of the Building Code, where framing systems are being altered to match the existing framing, lesser amounts of insulation and vapour barrier are acceptable. The Applicant argued that the insulation currently installed which provides an R20 rating, exceeds the performance of the previously installed insulation. Further the Applicant advised that it would be impractical to install insulation have a rating of R31 because of the existing 2 x4 framing and reduction in headroom that would result to achieve the requested rating.

The Applicant submitted that the City of Brampton is requesting the basement floor be excavated in order to conduct an underground plumbing inspection. The Applicant submitted that prior to construction, he had requested all records and drawings related to the house from the City of Brampton and was advised at that time that there was no record of the underground plumbing system that was approved at the time of the building was constructed in 1980. He submitted that the City of Brampton only produced the drain card record showing the original floor drain and three stacks after his building permit was issued.

The Applicant submitted that he is of the opinion that the installation of the air admittance valve in the laundry room and the as-installed R20 insulation in the ceiling of the laundry room provides sufficiency of compliance with the Building Code.

4. Respondent’s Position

The Designate for the Respondent submitted that the Applicant is the owner of a two-storey house, which has an existing basement apartment that was constructed without the benefit of a building permit. The Designate added that the Applicant is attempting to bring the basement apartment into compliance with the building code and municipal registration by-law so that he may register the unit and rent it, legally.

The Designate maintained that there were three aspects to the construction that are in dispute. He explained that two of the issues relate to the prescriptive construction requirements of the building code and one relates to the inspector’s duty of care to conduct the building code’s prescribed inspections.

The Designate outlined the issues in dispute as follows:

1. The use of an air admittance valve for the venting of a laundry tub and washer.
2. The installation of adequate insulation in the basement ceiling space
3. The exposure of below grade plumbing for the purpose of conducting the prescribed inspection.

The Designate submitted that Sentence 7.5.9.2.(1) of Division B of the Building Code states that an air admittance valve shall only be used to vent a) fixtures in buildings undergoing renovation and b) installation where connection to a vent may not be practical. The Designate argued that the installation of an air admittance valve is only permitted where the installation to the venting system is not practical. In this instance, he argued the admittance valve has been installed in an unfinished area. Therefore, based on the photographs provided and the inspections conducted, it was the Respondent’s opinion that it would be feasible to tie into an existing vent for the plumbing system.

The Designate submitted that Sentence 12.2.1.1.(3) of Division B of the Building Code and C199 of Table 11.5.1.1.C. states that where the framing systems are being altered to match existing framing, lesser amounts and extent of insulation and vapour barrier is acceptable. The Designate explained that the Applicant was seeking relief from providing the required insulation level for a ceiling without an attic based on compliance alternative C199 provided in the Code. The Designate argued that in this case, the ceiling framing is contained within a cold cellar and that adequate headroom can be provided while increasing the ceiling joist depth to accommodate the required insulation value. The Designate further submitted that that if greater headroom is desired, the Applicant could install alternative insulation types (such as expanded foam) in order to achieve the desired R value at a lesser joist depth.

The Designate submitted that with respect to Division C, Sentence 1.3.5.1.(2) of the Building Code, the Building Division only has a drain card record of the installation and inspection of the underground plumbing when the house was originally constructed, which includes the original floor drain and three stacks. However, the Designate maintained that it appears that all other existing plumbing in the basement was installed without the benefit of a building permit. The Designate argued that since there is no way to confirm that the below grade plumbing installed without a permit was done in accordance with the Building Code, the Building Department is requesting the Applicant to expose below grade plumbing for the purpose of conducting the prescribed inspection as required by Sentence 1.3.5.1.(2) of Division C of the Building Code.

The Designate submitted that it was his position that the Applicant’s proposal to use an air admittance valve in the laundry room to vent fixtures, as well as, the proposal to reduce the amount of insulation installed in the laundry room in order for it to match the existing framing in the ceiling, does not achieve compliance with Sentence 7.5.9.2.(1), Article 11.5.1.1. and Sentence 12.2.1.1.(3) and Table 11.5.1.1.C of Division B of the Building Code.

5. Commission Ruling

It is the decision of the Building Code Commission that as part of a basement renovation, the as-installed air admittance valve in the laundry room and the as-installed insulation matching the existing framing in the ceiling of the laundry room, provides sufficiency of compliance with Sentence 7.5.9.2.(1), Article 11.5.1.1. and Sentence 12.2.1.1.(3) and Table 11.5.1.1.C of Division B of the Building Code at 40 Denlow Drive, Brampton, Ontario.

6. Reasons

i) Section 24(1) of the Building Code Act, 1992 sets out the scope of dispute resolution for the Building Code Commission. It states:

This section applies if there is a dispute,

(a) between an applicant for a permit, a holder of a permit or a person to whom an order is given and the chief building official, a registered code agency or an inspector concerning the sufficiency of compliance with the technical requirements of the building code (emphasis added);

The Commission notes that Division C of the Building Code sets out the administrative provisions of the Building Code. Therefore, it is the Commission’s decision that it does not have the jurisdiction to make a ruling regarding notices and inspections as referenced by Sentence 1.3.5.1.(2) of Division C of the Building Code as it is an administrative provision and not a technical provision of the Code.

ii) The Commission heard evidence and testimony that the air admittance valve installed only serves two fixtures located within the same room, is certified, and has been installed in accordance with the BMEC authorization for use in Ontario. Based on the above, it is the Commission’s opinion that the as-installed air admittance valve achieves sufficiency of compliance with Sentence 7.5.9.2.(1) of Division B of the Building Code.

iii) Sentence 1.1.2.6.(1) of Division A of the Building code states, “Except as provided in Sentence (2), Part 11 of Division B applies to the design and construction of existing buildings, or parts of existing buildings, that have been in existence for at least five years”.

The Commission heard evidence that the subject building has been in existence for at least 5 years and therefore, Part 11 of the Building is applicable to this case.

Sentence 11.3.1.1.(1) of Division B of the Building Code states, “Where an existing building system is materially altered or repaired, the performance level of the building after the material alteration or repair shall be at least equal to the performance level of the building prior to the material alteration or repair. (See Appendix A.)”

The Commission heard evidence and testimony that the existing insulation in the laundry room ceiling was removed and replaced with an insulation having a significantly greater R value.

Sentence 11.5.1.1. (2) states that a compliance alternative shown in Table 11.5.1.1.A., 11.5.1.1.B., 11.5.1.1.C., 11.5.1.1.D/E. or 11.5.1.1.F. may be substituted for a requirement contained in Part 9 or 12 without satisfying the chief building official that compliance with the requirement is impracticable.

Table 11.5.1.1.C provides a compliance alternative (C199) for Sentence 12.2.1.1.(3) which states, “Where the framing systems are being altered to match the existing framing, lesser amounts and extent of insulation and vapour barrier is acceptable”.

The Commission heard that the existing insulation in the ceiling was upgraded within the existing framing in the laundry room.

It is the Commission’s opinion that the performance level of the building has been improved due to the material alteration and upgrading of the insulation in the laundry room and therefore, achieves sufficiency of compliance with Article 11.5.1.1. and Sentence 11.3.1.1.(1) of Division B of the Building Code.

Dated at the City of Toronto this 8th day in the month of December in the year 2019 for application number B-2019-24.

Matthew Graham, Chair-Designate

Leszek Muniak

Alexandra Chow