Citation: Ropp v. Capener-Hunt 2020 ONBCC 14

Ruling No.: 20-14-1165

Application No.: B-2020-03

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 Articles 3.1.5.5., 3.2.2.42. and 3.2.3.8. of Division B of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Gregg Ropp, for the resolution of a dispute with Lisa Capener-Hunt, Chief Building Official, to determine whether the proposed Exterior Insulation and Finish System (EIFS) that is to be installed on the exterior face of a seven-storey residential building, provides sufficiency of compliance with Articles 3.1.5.5., 3.2.2.42. and 3.2.3.8. of Division B of the Building Code at 90 Curtis Crescent, Kingston, Ontario.

APPLICANT Gregg Ropp

Vice President, Homestead Land Holdings Limited

Hamilton, Ontario

RESPONDENT Lisa Capener-Hunt

Chief Building Official

City of Kingston, Ontario

PANEL Stephen Wong, Chair

Christina Kalt

Dave Annable

PLACE Via Teleconference

DATE OF HEARING July 16, 2020

DATE OF RULING July 16, 2020

APPEARANCES Gregg Ropp

Vice President, Homestead Land Holdings Limited

Hamilton, Ontario

The Applicant

Steve Grant

Manager, Code Engineering, LRI Engineering Inc.

Toronto, Ontario

Agent for the Applicant

John Roberts

Senior Associate, LRI Engineering Inc.

Toronto, Ontario

Agent for the Applicant

Rhiannon Todd

Technical Consultant, LRI Engineering Inc.

Toronto, Ontario

Agent for the Applicant

Lisa Capener-Hunt

Chief Building Official

City of Kingston, Ontario

The Respondent

Jeffrey Gurnsey

Senior Building Official

City of Kingston, 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 install a new Exterior Insulation and Finish System (EIFS) on the exterior face of an existing seven-storey residential building located at 90 Curtis Crescent, Kingston, Ontario.

The Commission notes that as of January 1, 2020, Article 3.1.5.5. of Division B of the Building Code (the Code) was amended and what was previously Sentence 3.1.5.5.(6) is now Sentence 3.1.5.5.(4), but the requirements are identical. Although the application for this permit was made prior to January 1, 2020, for ease of reference, the parties agreed at the hearing to reference the January 1, 2020 amendment of the Article. As a result, this ruling will also reference Article 3.1.5.5. as per the January 1, 2020 amendment for consistency.

The subject building is an existing seven-storey Group C major occupancy building that was constructed circa 1972. The building is comprised of noncombustible construction and is equipped with a fire alarm system and standpipe and hose system. The governing building code at the time of construction was the 1970 National Building Code (NBC), which required the building be constructed of noncombustible construction but did not require the building be sprinklered. However, if the building were to be constructed today, it would be required to be built in conformance with Article 3.2.2.42. of Division B the Building Code.

The dispute centres on the Applicant’s proposal to use an EIFS that contains combustible components for renovating the exterior of the subject building, which is required to be of noncombustible construction. Article 3.1.5.5. permits the use of combustible components in a noncombustible exterior wall assembly provided certain conditions are met. Sentence 3.1.5.5.(4) waives compliance with this Article where foamed plastic insulation is used in an exterior wall assembly and the insulation is protected in conformance with Sentences 3.2.3.8.(1) and (2). In this case, the dispute is whether the proposed installation of the EIFS complies with Article 3.1.5.5. or with Article 3.2.3.8, in which case the requirements of Article 3.1.5.5. would not apply.

2. Provisions of the Building Code in Dispute

Article 3.1.5.5. Combustible Components for Exterior Walls

(1) Except as provided in Sentences (2) and (4), combustible components are permitted to be used for an exterior non-loadbearing wall assembly in a building required to be of noncombustible construction, provided that,

(a) the building is,

(i) not more than 3 storeys in building height, or

(ii) not more than 6 storeys in building height if sprinklered,

(b) when tested in accordance with CAN/ULC-S134, "Fire Test of Exterior Wall Assemblies", the wall assembly satisfies the following criteria for testing and conditions of acceptance:

(i) flaming on or in the wall assembly does not spread more than 5 m above the opening, and (See Appendix A.)

(ii) the heat flux during the flame exposure on the wall assembly is not more than 35 kW/m2 measured at 3.5 m above the opening, and (See Appendix A.)

(c) the interior surfaces of the wall assembly are protected by a thermal barrier conforming to Sentence 3.1.5.12.(5). (See Appendix A.)

(2) Except as permitted by Articles 3.2.3.10. and 3.2.3.11., where the limiting distance in Tables 3.2.3.1.B. to 3.2.3.1.E. permits an area of unprotected openings of not more than 10% of the exposing building face, the construction requirements of Table 3.2.3.7. shall be met.

(3) A wall assembly permitted by Sentence (1) that includes combustible cladding of fire-retardant treated wood shall be tested for fire exposure after the cladding has been subjected to an accelerated weathering test as specified in ASTM D2898, “Accelerated Weathering of Fire-Retardant-Treated Wood for Fire Testing”.

(4) The requirements of this Article do not apply where foamed plastic insulation is used in an exterior wall assembly of a building and the insulation is protected in conformance with Sentences 3.2.3.8.(1) and (2).

Article 3.2.2.42. Group C, Any Height, Any Area, Sprinklered

(1) Except as permitted by Articles 3.2.2.43. to 3.2.2.48., a building classified as Group C other than a retirement home shall conform to Sentence (2).

(2) Except as permitted by Article 3.2.2.16., the building referred to in Sentence (1) shall be of noncombustible construction, and,

(a) except as permitted by Sentence 3.2.2.7.(1), the building shall be sprinklered,

(b) except as permitted by Sentence (3), floor assemblies shall be fire separations with a fire-resistance rating not less than 2 h,

(c) mezzanines shall have a fire-resistance rating not less than 1 h, and

(d) loadbearing walls, columns and arches shall have a fire-resistance rating not less than that required for the supported assembly.

(3) In a building that contains dwelling units that have more than 1 storey, subject to the requirements of Sentence 3.3.4.2.(3), the floor assemblies, including floors over basements, which are entirely contained within these dwelling units, shall have a fire-resistance rating not less than 1 h but need not be constructed as fire separations.

Article 3.2.3.8. Protection of Exterior Building Face

(1) Except as permitted by Sentence (3) and in addition to the requirements of Sentence 3.2.3.7.(1) and where the maximum permitted area of unprotected openings is greater than 10% of the exposing building face, foamed plastic insulation used in an exterior wall of a building more than 3 storeys in building height shall be protected on its exterior surface by,

(a) concrete or masonry not less than 25 mm thick, or

(b) noncombustible material that complies with the criteria for testing and conditions of acceptance of Sentence (2) when tested in conformance with CAN/ULC-S101, “Fire Endurance Tests of Building Construction and Materials”.

(2) The criteria for testing and the conditions of acceptance for a wall assembly to satisfy the requirements of Clause (1)(b) are that,

(a) the fire exposed area of the wall assembly shall be not less than 9.3 m² and have no dimension less than 2.75 m,

(b) the exposed surface will include typical vertical and horizontal joints,

(c) the test shall be continued for not less than 15 min and the standard time/temperature curve of the referenced standard shall be followed,

(d) the noncombustible protective material will remain in place and no through openings will develop that are visible when viewed normal to the face of the material, and

(e) the noncombustible protective material will not disintegrate in a manner that would permit fire to propagate along the surface of the test assembly.

(3) The requirements of Sentence (1) are waived for wall assemblies that comply with the requirements of Article 3.1.5.5.

3. Applicant’s Position

The Applicant’s Agents submitted that the dispute centres on the proposed installation of an EIFS, which contains combustible components, on the exterior face of the existing seven-storey, unsprinklered residential building. The Applicant’s Agents explained that the Chief Building Official’s position is that the proposed EIFS would only be permitted if the building is provided with an automatic sprinkler system, in accordance with Article 3.2.2.42. of Division B of the Building Code.

The Applicant’s Agents confirmed that the subject building was constructed circa 1972 and was designed in accordance with the 1970 NBC, the governing Code at the time, which did not require that the seven-storey residential building be sprinklered.

As the subject building has been in existence for at least five years, the Applicant’s Agents submitted that the proposed renovation falls under Part 11 of Division B of the Code. They explained that Article 1.1.2.7. of Division A of the Code specifies that “if an existing building is extended or is subject to material alternation or repair, [the] Code applies only to the design and construction of the extensions and those parts of the building that are subject to the material alteration or repair”.

Since the proposed EIFS installation does not affect existing building systems, the Applicant’s Agents argued that the existing building systems are not required to be upgraded and new building systems, such as a sprinkler system, are similarly not required. They also submitted that the proposed alterations to the building do not include the removal or replacement of interior walls, ceilings, floors, or roof assemblies within any storey of the building, and therefore sprinkler protection is not required by Sentence 11.3.3.2.(4) of Division B of the Code.

The Applicant’s Agents stated that the primary intent of Part 11 of Division B of the Code, relating to the alteration or repair of existing building systems, is that the performance level of the building after the material alteration or repair is required to be at least equal to the performance level of the building prior to the alterations, as per Article 11.3.1.1. They further explained that in this case, compensating construction is not required since Article 11.3.3.1. does not reference exterior cladding systems. However, the Applicant’s Agents explained that in accordance with Article 11.3.1.2., the design and construction of a new building system or the extension of an existing building system is required to comply with all other Parts of the Code, which in this case is Part 3.

The Applicant’s Agents maintained that under Part 3 of the Code, the proposed new exterior cladding system is required to comply with the requirements for noncombustible construction as regulated by Subsection 3.1.5. They submitted that Article 3.1.5.5. addresses the use of combustible components for exterior walls forming part of a building that is required to be constructed of noncombustible construction. They similarly submitted that in accordance with Sentence 3.1.5.5.(4), the requirements of Sentence 3.1.5.5.(1) are permitted to be waived where foamed plastic insulation is used in an exterior wall assembly and the insulation is protected in conformance with Sentences 3.2.3.8.(1) and (2).

While acknowledging that the proposed exterior cladding system does not comply with Sentence 3.1.5.5.(1), the Applicant’s Agents submitted that the proposed exterior cladding complies with Sentences 3.2.3.8.(1) and (2). The Applicant’s Agents further explained how the proposed EIFS met the CAN/ULC-S101 test requirements outlined in Clause 3.2.3.8.(1)(b). In referencing the Canadian Construction Materials Centre (CCMC) Evaluation Report for the subject EIFS, the Applicant’s Agents suggested that where a building is compliant with Article 3.2.3.8., the height restrictions outlined in Sentence 3.1.5.5.(1) and stipulated in the CCMC Evaluation Report are not applicable. For this reason, the Applicant’s Agents are of the opinion that the proposed EIFS can be installed on the existing seven-storey residential building.

The Applicant’s Agents reported that based on the Applicant’s spatial separation analysis, the most restrictive limiting distance for the building is approximately 22.6 metres. Using Table 3.2.3.1.B. for a Group C unsprinklered building in their limiting distance analysis for each exposing building face of the subject building, the Applicant’s Agents submitted that a limiting distance greater than 20 metres permits it to have at least 23% unprotected openings, regardless of the area of the exposing building face. The Applicant’s Agents also submitted that Subsection 3.2.3. of Division B of the Code contains separate tables to determine the permitted unprotected openings for exposing building faces on sprinklered and unsprinklered buildings, with unsprinklered buildings requiring a greater limiting distance to provide the equivalent level of protection. Therefore, they argued that the requirement for more than 10% of the building face to be permitted to be of unprotected openings provides the same level of protection against the transfer of fire between adjacent buildings, both sprinklered and unsprinklered.

As the subject unsprinklered residential building is permitted to have more than 10% unprotected openings and the proposed EIFS complies with the testing requirements of Clause 3.2.3.8.(1)(b), the Applicant’s Agents submitted that the proposed exterior cladding system complies with Part 3 of the Code.

4. Respondent’s Position

The Respondent’s Designate submitted that the Applicant is proposing to install a new EIFS on an existing seven-storey noncombustible Group C residential building that is unsprinklered. The Respondent’s Designate agreed that Part 11 of Division B of the Code is applicable in this case as the existing building is more than 5 years old. However, the Designate maintained that the proposed EIFS is a new exterior cladding system as defined by the Code. He explained Article 11.3.1.2 requires that new building systems must comply with all other Parts of the Code, in this case Part 3. He also explained that that Part 11 of the Code does not provide any compliance alternatives relating to this type of proposed construction and occupancy.

When assessing new construction such as the proposed EIFS, the Designate submitted that before Clause 3.2.3.8.(1)(b) can be applied, the Code first requires that the building be classified in accordance with Subsection 3.2.2. of Division B of the Code. The Designate stated that had the subject building been constructed today, it would be classified in accordance with Article 3.2.2.42., which would require that the building be sprinklered. He further submitted that since the existing residential building is not sprinklered, the proposed EIFS cannot be installed in accordance with the requirements of the building classification outlined in Article 3.2.2.42.

In referencing the CCMC Evaluation Report for the proposed EIFS, the Designate noted that under Section 3 of the CCMC Report, Conditions and Limitations, Subsection 3.5, Fire Protection, it states that where allowed by the Code through conformance to Sentence 3.1.5.5.(1), Combustible Cladding on Exterior Walls, of Division B of the NBC 2015, the subject product is acceptable for use on buildings required to be of noncombustible construction, where not more than three storeys in height if unsprinklered, and to an unlimited number of storeys if sprinklered. The Designate argued that since the subject building is more than three storeys in height and is not sprinklered, the proposed EIFS installation does not meet the Conditions and Limitations requirements outlined in the CCMC Report.

The Designate maintained that the Building Code intentionally limits the use of such systems to noncombustible buildings that are sprinklered and that do not exceed six storeys in building height. He further indicated that there is no harmonization with the NBC on this requirement.

The Designate also clarified that because the subject building is existing, a sprinkler system need not be installed to comply with Article 3.2.2.42., which would be required for new construction. However, the Designate submitted it was his position that as the existing building is required to be of noncombustible construction and is more than six-storeys in building height, an EIFS that contains combustible components cannot be installed.

5. Commission Ruling

It is the decision of the Building Code Commission that the proposed Exterior Insulation and Finish System (EIFS) that is to be installed on the exterior face of a seven-storey residential building does not provide sufficiency of compliance with Articles 3.1.5.5., 3.2.2.42. and 3.2.3.8. of Division B of the Building Code at 90 Curtis Crescent, Kingston, Ontario.

6. Reasons

i) The Commission heard that there was no dispute with respect to Article 3.2.2.42. Both parties agreed that the subject building is not required to be sprinklered in order to comply with Article 3.2.2.42. because it is an existing building, built circa 1972, and therefore the proposed construction falls under Part 11 of the Code.

Sentence 11.3.1.2.(1) of Division B of the Building Code states, “Except as provided in Article 11.3.3.1. and Section 11.5., the design and construction of a new building system or the extension of an existing building system, shall comply with all other Parts.”

The Commission heard the parties agree that the EIFS that is proposed to be installed on the exterior face of the existing building is considered to be a new building system as defined by the Building Code, and as such other Parts of the Code are applicable, specifically Articles 3.1.5.5. and 3.2.3.8. The Commission also heard the parties agree that the existing seven-storey residential building is required to be of noncombustible construction.

ii) Article 3.1.5.5. of Division B of the Building Code identifies under which circumstances combustible components can be used as part of the exterior non-loadbearing wall assembly of a building that is required to be of noncombustible construction.

Clause 3.1.5.5.(1)(a) only permits combustible components be used in an exterior non-loadbearing wall assembly where an unsprinklered building is not more than three storeys in building height or a sprinklered building is not more than six storeys in building height.

The Commission also heard evidence from the Ministry of Municipal Affairs and Housing’s Code Advisor that Ontario intentionally limits noncombustible buildings with combustible components in exterior walls to the building height limitations in Clause 3.1.5.5.(1)(a) for unsprinklered and sprinklered buildings.

It is the Commission’s opinion that as the existing seven storey residential building is unsprinklered, the proposed EIFS, which contains combustible components, does not provide sufficiency of compliance with Clause 3.1.5.5.(1)(a).

iii) Sentence 3.1.5.5.(4) of Division B of the Building Code permits the requirements of Article 3.1.5.5. to be waived where foamed plastic is used in an exterior wall assembly and the insulation is protected in conformance with Sentences 3.2.3.8.(1) and (2).

Sentence 3.2.3.8.(1) of the Building Code states, in part:

“Except as permitted by Sentence (3) and in addition to the requirements of Sentence 3.2.3.7.(1) and where the maximum permitted area of unprotected openings is greater than 10% of the exposing building face, foamed plastic insulation used in an exterior wall of a building more than 3 storeys in building height shall be protected on its exterior surface by, ...”

In particular, the Commission notes that Sentence 3.2.3.8.(1) requires compliance with Sentence 3.2.3.7.(1).

The Commission also heard the Ministry Code Advisor explain that Article 3.2.3.8. applies to combustible and noncombustible construction; therefore, it must be read in conjunction with other direct Code references.

The Commission received evidence from the Applicant’s Agents reporting that the maximum area of unprotected openings for the existing residential building, as a percentage of exposing building face area, is at least 23% for each exposing building face.

Sentence 3.2.3.7.(1) of Division B of the Building Code requires the fire-resistance rating, construction and cladding for exposing building faces of buildings or fire compartments to comply with Table 3.2.3.7. The Commission notes that for a Group C building where the maximum area of unprotected openings is 50% or less as a percentage of exposing building face, Table 3.2.3.7. requires the cladding to be noncombustible. In addition, the Commission notes that Sentence 3.2.3.7.(4) permits combustible components in cladding for buildings or fire compartments where the maximum permitted area of unprotected openings is more than 10% but not more than 25% of the exposing building face where the wall assembly complies with Article 3.1.5.5. As outlined in reason ii) above, the proposed construction does not comply with Clause 3.1.5.5.(1)(a).

It is the Commission’s opinion that since the existing unsprinklered residential building is more than three stories in building height and the proposed EIFS contains combustible components, it does not provide sufficiency of compliance with Table 3.2.3.7. and the exception provided by Sentence 3.2.3.7.(4) does not apply, and therefore, the proposed EIFS does not sufficiently comply with Sentence 3.2.3.7.(1). As a result, the Commission is also of the opinion that the proposed exterior cladding system does not achieve sufficiency of compliance with Sentence 3.2.3.8.(1).

Dated at the City of Toronto this 16th day in the month of July in the year 2020 for application number B-2020-03.

Stephen Wong, Chair

Christina Kalt

Dave Annable