Ruling No.: 20-22-1173
Application No.: B-2020-06
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 3.8.2.3.(2), Subclause 3.8.3.12.(1)(b)(i), Clauses 3.8.3.12.(2)(a) and (b), and Sentence 3.8.3.3.(17) of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Roland Drasco, for the resolution of a dispute with Mike Seiling, Chief Building Official, to determine whether the proposal not to provide a universal washroom in each unit of an industrial occupancy building, provides sufficiency of compliance with Sentence 3.8.2.3.(2), Subclause 3.8.3.12.(1)(b)(i), Clauses 3.8.3.12.(2)(a) and (b), and Sentence 3.8.3.3.(17) of Division B of the Building Code located at 70 Dumart Place, Kitchener, Ontario.
APPLICANT Roland Drasco Owner City of Kitchener, Ontario
RESPONDENT Mike Seiling Chief Building Official City of Kitchener, Ontario
PANEL Matthew Graham, Chair Designate Stephen Wong Fred Barkhouse
PLACE City of Toronto, Ontario by teleconference
DATE OF HEARING November 26, 2020
DATE OF RULING November 26, 2020
APPEARANCES Leslie Collins Municipal Building Official II City of Kitchener, Ontario Designate for the Respondent
Tim Benedict Manager of Building City of Kitchener, Ontario Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant received a building permit under the Building Code Act, 1992, to renovate an existing industrial occupancy building at 70 Dumart Place, Kitchener, Ontario.
The existing building located at the rear of the property is a one-storey subsidiary building to the main building and is intended to be used for storage/warehouse. The subject building is classified as a Part 9, Group F, Division 2, major occupancy building. The subject building was built without a permit over 20 years ago. The Applicant received a building permit to convert the existing building into a two-storey, two-unit, storage/ warehouse with a building area of approximately 200 m2
The construction in dispute between the two parties centres on whether the proposal not to provide a universal washroom in each of the two new units of the industrial occupancy building, provides sufficiency of compliance with Sentence 3.8.2.3.(2), Subclause 3.8.3.12.(1)(b)(i), Clauses 3.8.3.12.(2)(a) and (b), and Sentence 3.8.3.3.(17) of Division B of the Building Code (the Code).
2. Provisions of the Building Code in Dispute
Article 3.8.2.3., Division B - Washrooms Required to be Barrier-Free
(1) A barrier-free path of travel shall be provided to barrier-free washrooms designed to accommodate persons with disabilities in conformance with the requirements in Articles 3.8.3.8. to 3.8.3.12.
(2) The number of universal washrooms conforming to Article 3.8.3.12. provided in a building in which a washroom is required by Subsection 3.7.4. shall conform to Table 3.8.2.3.A.
(3) Where a washroom required by Subsection 3.7.4. is provided in a storey that is required by Article 3.8.2.1. to have a barrier-free path of travel,
(a) the washroom shall conform to Articles 3.8.3.8. to 3.8.3.11., and
(b) the number of barrier-free water closet stalls or enclosures provided in the washroom shall conform to Table 3.8.2.3.B.
Article 3.8.3.12., Division B - Universal Washrooms
3.8.3.12. Universal Washrooms
(1) A universal washroom shall,
(a) be served by a barrier-free path of travel,
(b) have a door that,
(i) complies with Article 3.8.3.3.,
(ii) has a graspable latch-operating mechanism that is,
(A) operable using a closed fist and with a force of not more than 22.2 N, and
(B) located between 900 mm and 1 000 mm above the finished floor, and
(iii) is capable of being locked from the inside and released from the outside in case of emergency,
(c) have one lavatory conforming to Sentences 3.8.3.11.(1), (3) and (4),
(d) have one water closet conforming to Article 3.8.3.9. that is located in accordance with Clause 3.8.3.8.(2)(a) or (b),
(e) have grab bars conforming to,
(i) Sentence 3.8.3.8.(3), if the water closet is located in accordance with Clause 3.8.3.8.(2)(a), or
(ii) Sentence 3.8.3.8.(4), if the water closet is located in accordance with Clause 3.8.3.8.(2)(b),
(f) have no internal dimension between walls that is less than 1 700 mm,
(g) have a coat hook that conforms to Clause 3.8.3.8.(1)(e) and a shelf that is located not more than 1 100 mm above the finished floor and projects not more than 100 mm from the wall,
(h) be designed to permit a wheelchair to turn in an open space not less than 1 700 mm in diameter,
(i) be provided with a door equipped with a power door operator,
(j) be provided with a mirror,
(i) installed above a lavatory described in Clause (1)(c), and
(ii) mounted with its bottom edge not more than 1 000 mm above the finished floor or inclined to the vertical to be usable by a person in a wheelchair, and
(k) have lighting controlled by a motion sensor conforming to Sentence 12.2.4.1.(2).
(2) A universal washroom shall have,
(a) an emergency call system that consists of audible and visual signal devices inside and outside of the washroom that are activated by a control device inside the washroom, and
(b) an emergency sign that contains the words IN THE EVENT OF AN EMERGENCY PUSH EMERGENCY BUTTON AND AUDIBLE AND VISUAL SIGNAL WILL ACTIVATE in letters at least 25 mm high with a 5 mm stroke and that is posted above the emergency button.
Article 3.8.3.3., Division B - Doorways and Doors
(17) Except where a proximity scanning device is installed in conformance with Sentence (18), the control for a power door operator required by Sentence (4), (5) or (6) shall,
(a) have a face dimension of not less than,
(i) 150 mm in diameter where the control is circular, or
(ii) 50 mm by 100 mm where the control is rectangular,
(b) be operable using a closed fist,
(c) be located so that,
(i) its centre is located not less than 900 mm and not more than 1 100 mm from the finished floor or ground, or
(ii) it extends from not more than 200 mm to not less than 900 mm above the finished floor or ground,
(d) be located not less than 600 mm and not more than 1 500 mm beyond the door swing where the door opens towards the control,
(e) be located to allow persons to activate the opening of the door from either direction of travel,
(f) be located so that the path of travel is not obstructed
(g) be located in a clearly visible position, and
(h) contain a sign incorporating the International Symbol of Access.
(18) A proximity scanning device that activates a power door shall be capable of detecting a person in a wheelchair.
3. Applicant’s Position
The Applicant submitted that he had purchased the subject property in 2016 to use as storage/warehouse, and subsequently discovered the building had been built without a permit over 20 years ago.
The Applicant submitted that the original unheated storage building had no water supply to the building and was used for storage of equipment and materials related to his masonry business. Due to a dangerous roof condition the owner applied for a building permit for a new roof.
The Applicant explained that he intended to convert the existing one storey storage garage into a two storey, two-unit building in order to rent the units to offset the cost of the work needed to bring the building up to Code.
The Applicant maintained that the renovated building would not normally be occupied and would be used as a storage/warehouse to store vehicles or large equipment on the ground floor and boxes, hand tools, etc. on the second floor.
However, as a condition of the building permit, a washroom is required to be installed in each of the units. Therefore, the Applicant reported that he had the property excavated and brought all the necessary underground plumbing facilities to the building. The Applicant stated that he intends to install washrooms in each of the units, but not barrier-free washrooms. Given that the surface area of the ground floor in each unit is 100 m2, the Applicant expressed concern that a universal washroom would take up 20% of the space in each unit, significantly reducing the footprint for storage of large vehicles. The Applicant stated that the building would only be heated to 10° C during the winter, is not open to members of the public, and does not contain any portions where members of the public are entitled to access, and that washrooms are only for the sole use of the owner as private use. In response to questions, the Applicant confirmed that the building was not intended to be occupied on a daily or full-time basis, and therefore, that there would be no reasonable assumption that the units would be fully accessible to the public.
In response to questions, the Applicant submitted that as the existing building had been built without a permit and, due to the extensive work being done to convert the existing building into a two storey, two-unit storage building, the building was being treated as a new building by the municipality and subsequently, imposed the requirement for a universal washroom.
The Applicant stated it was his intention to bring the building up to the Code and comply with all the requirements. However, he maintained that to provide a universal washroom in each of the units, which would rarely be occupied, was onerous and costly.
In summary, the Applicant submitted that the two storey Group F2 occupancy building is existing and interior floor layouts of the two created suites do not change the occupancy classification. Further, the building is not normally occupied and will only be maintained to 10° C in the winter, and as such, universal washrooms should not be required.
4. Respondent’s Position
The Designate for the Respondent submitted that the proposed building has been designed with two suites that will each be used as a Part 9 Group F, Division 2 occupancy. The Designate explained that as per the Building Code, Group F2 occupancies may include businesses like bakeries, body shops, sample display rooms and welding shops. The Designate maintained that the Building Code requires the subject building to comply with barrier-free design provisions as per Section 3.8. of the Code. Further, she maintained that many of the businesses that fall within a Group F2 occupancy would have the public in their unit and may have employees. Also, there was the creation of two separate suites not solely for the owner occupied and private use only.
The Designate submitted that the Building Code requires washrooms be located in each suite. Further, as these washrooms do not meet the definition of a “private use” as per the Building Code, all the requirements of a public washroom are to be met including the requirement of barrier-free, specifically, the requirements for a universal washroom.
The Designate submitted that as the proposed two-unit building does not meet any of the exemptions from barrier-free requirements, the provisions of Subsection 3.8.3. for barrier-free design are applicable. Further, only the unenclosed building is existing. Interior floor layouts, which create two new suites are new construction. Therefore, the washrooms in each suite are required to be supplied with a power door operator and emergency call system as per Subsection 3.8.3. of the Building Code.
The Designate also indicated that the building is accessible to the public and may include employees. Further, the Designate clarified that the permit application is for the new roof only and does not include the two new suites. The Designate maintained that since the building was constructed without a permit 20 years ago, it must be treated as a new building.
In summary, the Designate submitted that the proposed new, two-unit, Group F2 occupancy building is required to have a universal washroom in each of the units and therefore, the proposal not to provide them does not comply with the Code
5. Commission Ruling
It is the decision of the Building Code Commission that the proposal not to provide a universal washroom in each unit of an industrial occupancy building provides sufficiency of compliance with Sentence 3.8.2.3.(2), Subclause 3.8.3.12.(1)(b)(i), Clauses 3.8.3.12.(2)(a) and (b), and Sentence 3.8.3.3.(17) of Division B of the Building Code located at 70 Dumart Place, Kitchener, Ontario.
6. Reasons
i) The Commission notes that Clause 3.8.1.1.(1)(c) of Division B of the Building Code states that the application of barrier-free design provisions applies to all buildings except buildings that are not intended to be occupied on a daily or full-time basis.
The Commission heard evidence and testimony that the intent of the Applicant is to use the subject building for storage and that the storage units will not be occupied on a daily or full-time basis.
It is the Commission’s opinion, based on the evidence and testimony provided, that the building will not be occupied on a daily or full-time basis and is therefore exempt from providing universal washrooms. The barrier-free provisions of the Building Code in dispute are not applicable in this case.
Dated at the City of Toronto this 26th day in the month of November in the year 2020 for application number B-2020-06.
Matthew Graham, Chair Designate
Stephen Wong
Fred Barkhouse