Citation: Randle v. Johnston 2020 ONBCC 06

Ruling No.: 20-06-1557

Application No.: B-2019-31

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 Sentences 3.1.3.2.(2) and 3.1.3.2.(4) and Article 11.2.1.3. of Division B of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Kathryn Randle for the resolution of a dispute with Will Johnston, Chief Building Official, to determine whether the alternative solution proposal to construct a Group F, Division 2 occupancy on the first storey of a building, which also contains Group C residential suites, provides sufficiency of compliance with Sentences 3.1.3.2.(2) and 3.1.3.2.(4) and Article 11.2.1.3. of Division B, of the 2012 Building Code located at 31-39 King Street, Toronto, Ontario.

APPLICANT Kathryn Randle Development Manager WB Weston Village Limited Partnership Toronto, Ontario

RESPONDENT Will Johnston Chief Building Official City of Toronto Toronto, Ontario

PANEL Alison Orr, Chair Designate Christina Kalt Michael Egberts

PLACE City of Toronto, Ontario

DATE OF HEARING March 5, 2020

DATE OF RULING March 5, 2020

APPEARANCES Sarah Curl Vortex Fire Consulting Toronto, Ontario Agent for the Applicant

Tamer Mikhail Manager Plans Review City of Toronto Toronto, Ontario Designate for the Respondent

Joseph Wassef Building Engineer City of Toronto Toronto, Ontario Designate for the Respondent

Kevin Aucoin Platoon Chief Toronto Fire Services Toronto, 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 construct a self-service storage facility, in the existing space on the first storey of an existing 31-storey building at 31-39 King Street, Toronto, Ontario.

The subject building is an existing 31-storey building with Group A2, C, D, E, and F3 mixed occupancies. The building has a building area of approximately 8400 m². It is comprised of non-combustible construction and is equipped with a standpipe and hose system and fire alarm system but is not sprinklered. The Applicant is proposing, as part of a renovation, to convert existing residential suites on the first storey of the building to a Group F, Division 2 self-service storage facility.

The dispute before the Commission centres on whether the proposal to construct a Group F, Division 2 occupancy on the first storey of the building, which also contains Group C residential suites, provides sufficiency of compliance with Sentences 3.1.3.2.(2) and 3.1.3.2.(4) and Article 11.2.1.3. of Division B of the Building Code.

2. Provisions of the Building Code in Dispute

Article 3.1.3.2., Division B - Prohibition of Occupancy Combinations

(2) Except as provided in Sentence (4) and Sentence 3.10.2.4.(9), not more than one suite of residential occupancy shall be contained within a building classified as a Group F, Division 2 major occupancy.

(4) A Group F, Division 2 major occupancy is permitted in a building containing only live/work units if the occupancy is for the exclusive use of the occupants of the live/work units.

Article 11.2.1.3., Division B - Prohibition of Occupancy Combinations

(1) Nothing in this Part relieves an applicant from complying with the requirements of Article 3.1.3.2. or 9.10.9.12.

Objectives and Functional Statements associated with Article 3.1.3.2.

3. Applicant’s Position

The Agent for the Applicant submitted that the existing 31-storey building was built in the 1970’s and contains several major occupancies including Group A, Division 2, Assembly, Group C, Residential, including live/work units, Group D, Business and Personal Services, Group E Mercantile and Group F, Division 3, Low Hazard Industrial.

The renovation proposes to introduce a self-service storage facility on the first storey, which would be considered a Group F, Division 2, Medium Hazard industrial occupancy. The Agent advised that an alternative solution had been submitted to the building department for this work but was subsequently denied. The Agent explained that the proposed space for the self-service storage facility was originally envisioned to be a retail grocery, but this use was never realized. In the past, the space has been used for flea market events but has not been permanently occupied.

The Agent reported that the first storey of the building contains offices, live/work units and a convenience store. The second and third storey contain residential suites and an open-air parking garage. The fourth storey contains open air parking and a swimming pool on an exterior terrace and the 5^th to 31^st storeys contain residential suites.

The Agent advised that, as per Article 3.1.3.2. of the Building Code, specific combinations of occupancies in buildings are prohibited and Sentence 2 of this article stipulates that “Except as provided in Sentence 4) and Sentence 3.10.2.4.(9) not more than one suite of residential occupancy shall be contained within a building classified as a Group F, Division 2 major occupancy”, such as a self-service storage facility.

The Agent indicated that the intent of this Article is to limit the probability that an explosion or rapidly developing fire originating in a medium hazard industrial major occupancy will lead to harm to persons in a residential suite.

The Agent argued however, that an F2 occupancy would be permitted in a building containing a Group A or B occupancy, like a school, theater, daycare, jail, hospital or long term care facility, some of which would contain sleeping facilities where occupants would be more restricted in terms of egress and be less familiar with their surroundings. In this case, a residential tenant, will be familiar with their surroundings and egress facilities would not be restricted.

The Agent submitted that that Commission had decided in a case before them in 2005 that a proposal to construct a self-service storage building in the basement of a building containing both Group E and Group C occupancies was determined to sufficiently comply with the Code. The Agent explained that the self-service storage facility was permitted based on the following conditions: the storage facility was separated from the remainder of the building by a 2 h fire separation, exits stairs have a 2 h fire separation, smoke detection is provided in the storage facility and residential suites, a single stage fire alarm be provided, on site supervision of the storage facility be provided and contractual agreements be in place for storage users to restrict content.

The Agent submitted that in the present matter, several features are being proposed to mitigate risk to occupants of the residential suites as follows:

No residential suites are to be located on the floor above or below the public self-service storage facility.
The public self-service storage facility will be separated horizontally from the adjacent public corridor serving as egress for the storage facility and the adjacent live/work units by a 4 h rated concrete block assembly. In addition, Measure ‘N’ smoke control vestibules will be provided where egress is provided through the 4 h fire rated separation to the public corridor that is rated for 1 h on the live/work side. These vestibules will be pressurized upon activation of the fire alarm system.
The public self-service storage facility will be separated vertically from the floor areas above and below by the existing 3 h fire rated floor separation.
The public self-service storage facility will be fully sprinklered with an Extra Hazard Group II sprinkler system. A separate newly installed fire department connection and a fire pump will be provided.
Exit facilities will be provided such that the travel distance will not be more than 45 m from any point within the public self-service storage facility to either an exterior exit or the pressurized vestibules leading to the public corridor.
The building will have a single stage fire alarm system with a separate zone serving the public self-service storage facility.
Smoke detection devices will be installed within the public self-service storage facility to provide early warning to all the occupants within the building.
A dedicated smoke venting system to provide 6 air changes per hour to serve the public self-service storage facility to aid for firefighting venting.
Fire hose stations will be provided within the public self-service storage facility to ensure coverage to every portion within 33 m from the fire hose stations.
Responding firefighters will have access to all sides of the building at ground level through exterior exit doors to fire separated public corridors.
Storage of flammable, illegal, perishable or hazardous materials will not be permitted within the public self-service storage facility. This will be enforced by contracts with the self-service storage users. This public self-service storage facility will have access control and video surveillance. Access will be restricted to staffed operating hours and on an exclusive basis after hours.

The Agent submitted that in addition to the above, self-service storage users would sign contracts describing what types of items are permitted to be stored. Further, the building is equipped with 32 cameras and the cameras would be located on both the inside and outside of the entry points to the storage facility.

The Agent maintained that it was the Applicant’s position when considering the above compensation measures, the proposed public self-service storage facility provides sufficiency of compliance with Sentences 3.1.3.2.(2) and 3.1.3.2.(4) and Article 11.2.1.3. of Division B of the Building Code.

4. Respondent’s Position

The Designate for the Respondent submitted that a public self-service storage facility with a Group F, Division 2 occupancy is being proposed on the ground level of the existing 31-storey unsprinklered, mixed-use residential high-rise building. The Designate submitted that the building is more than 5 years old and contains 26 residential suites on the same ground level as the proposed self-service storage building and further, that 26 other residential suites exist on the second and third floor, with 391 additional residential suites on the 27 floors above the third floor of the subject building.

The Designate submitted that Sentence 3.1.3.2.(2) of Division B of the Building Code prohibits more than one suite of residential occupancy to be contained within a building classified as Group F, Division 2 major occupancy.

The Designated submitted that Sentence 3.1.3.2.(2) makes reference to Sentence 3.10.2.4.(9), which would allow up to two residential units; however, this specific provision would only apply to a self-service storage building. The Designate argued that this provision would not be applicable in this case because the proposed self-service storage occupancy is not a separate building but rather is located within a mixed-use high-rise building.

The Designate advised that Sentence 3.1.3.2.(4) refers to an exception for live/work units if the F2 occupancy is for exclusive use of the occupant, which is not the case in this instance.

The Designate further submitted that as the building is more than 5 years old, Part 11 of the Building Code was reviewed, with respect to Article 11.2.1.3. regarding “Prohibition of Occupancy Combinations”. This Article does not relieve the Applicant from complying with the requirements of Article 3.1.3.2. and therefore, cannot be used.

The Designate submitted that it was the building department’s position that the alternative solution proposed by the Applicant does not provide sufficiency of compliance with Sentence 3.1.3.2.(2) for the following reasons:

The existing building, built in the 70’s, is unsprinklered and contains a large number of residential units. The Code would only permit one or two residential unit(s) be contained within any building classified as Group F, Division 2 major occupancy, and they are usually for the caretaker of the building.
It is practically impossible to limit the content or volume of combustibles to be stored in a public self-service service storage facility. When packed, self-service storage units provide a lot of material to burn for long periods of time and produce a lot of smoke. As such, the proposal fails to comply with Functional Statement - F02, which states, “To limit the severity and effects of fire or explosions” and is associated with Article 3.1.3.2. of Division B.
Firefighting strategies pertaining to a public self-service storage facility incident are typically never from inside. Rather, the primary strategy is to control the spread of fire to nearby buildings while the fire is burning. Therefore, it is the opinion of the Designate that the proposed alternative solution fails to comply with Functional Statement – F03, which states “To retard the effect of fire on areas beyond its point of origin”.
A public self-service storage facility fire may take hours to burn which could affect the structural integrity of the building and cause it to collapse. This would disrupt and damage neighboring buildings. As a result, the proposed alternative solution fails to comply with the intended Objective - OS1.2., which states, “A person in or adjacent to the building will be exposed to an unacceptable risk of injury due to fire caused by fire or explosion impacting areas beyond its point of origin”.
This proposed public self-service storage facility would share exits with residential units in the unsprinklered high-rise building. In the case of a fire, this would make it difficult for firefighters to carry out timely rescue operations. Therefore, the proposed alternative solution fails to comply with Functional Statement – F10, which states, “To facilitate the timely movement of persons to a safe place in an emergency”.

The Designate submitted that input was sought from Toronto Fire Services in the past and similar proposals have been rejected for the reasons indicated above.

The Platoon Chief from Toronto Fire Services explained some of his concerns related to the proposed construction from a fire fighting perspective. The Designate submitted that due to combustible content in storage facilities, and depending on the materials being stored, a sprinkler system will not likely supress a fire in a self-service storage facility but may contain it. The Designate explained that specialized materials would be used to suppress such a fire. However, the Designate indicated that the first priority for firefighters is to rescue residents and the second priority is to locate the source of the fire and extinguish it. Due to the magnitude of the high-rise building and the primary focus on rescuing residents, delays in locating and extinguishing such a fire could occur. The Designate submitted that there is also a limit to controlling what types of combustible items are stored and therefore, the higher the combustible content the higher the risks. The Designate added that a fire in such a situation would present a twofold problem for fire fighters, an increase in the amount of smoke due to the combustible content and the nature of a storage facility fire, while prioritizing the rescue operations of residents in such a large building. The Designate provided it was his experience that storage facility fires are complex and can burn for many hours, if not days, and can damage the structural integrity of a building.

The Designate submitted that the primary structural support for the subject building’s residential tower is located within the proposed self-service storage facility. Therefore, a long burning fire located within the self-service storage facility could compromise the integrity of the structure.

The Designate maintained that it is the position of the Respondent that the proposed public self-service storage facility change of use does not provide sufficiency of compliance with Sentences 3.1.3.2.(2) and 3.1.3.2.(4) and Article 11.2.1.3. of Division B of the Building Code.

5. Commission Ruling

It is the decision of the Building Code Commission that the alternative solution proposal to construct a Group F, Division 2 occupancy on the first storey of a building, which also contains Group C residential suites, does not provide sufficiency of compliance with Sentences 3.1.3.2.(2) and 3.1.3.2.(4) and Article 11.2.1.3. of Division B, of the 2012 Building Code located at 31-39 King Street, Toronto, Ontario.

6. Reasons

i) Article 3.1.3.2.(2) and 3.1.3.2.(4) of Division B of the Building Code prohibit more than one or two Group C major occupancy residential suites be located within a building having a Group F, Division 2 major occupancy unless they are live/work units and the occupancy is for the exclusive use of the occupants of the live/work units.

ii) The Commission received evidence that as part of the alternative solution proposed by the Applicant, various compensating measures were being offered.

The Commission notes that some of the features proposed by the Applicant, including smoke detectors, a fire alarm system and sprinklering would be required by the Building Code for the proposed change of use of this building and are not considered to be compensating measures.

Further it is the Commission’s opinion that the compensating measures proposed are not sufficient to offset the risk associated with have a residential high-rise above a self-service storage facility.

iii) Sentence 11.2.1.3.(1) of Division B states, “Nothing in this Part relieves an applicant from complying with the requirements of Article 3.1.3.2. or 9.10.9.12.”.

Therefore, there is no compliance alternative or relief from the requirements of Article 3.1.3.2. of the Building Code for the proposed construction.

iv) Division A, Sentence 1.2.1.1.(1) provides an alternative to compliance with the applicable acceptable solutions in Division B by permitting the use of alternative solutions that will achieve the level of performance required by the applicable acceptable solutions in Division B in respect of the objectives and functional statements attributed to the applicable acceptable solutions in Supplementary Standard SA-1.

The Commission heard that the Applicant has applied for an alternative solution to achieve compliance with Article 3.1.3.2. of Division B.

Objective OS1.5 associated with Article 3.1.3.2. of Division B states:

An objective of this Code is to limit the probability that, as a result of the design or construction of a building, a person in or adjacent to the building will be exposed to an unacceptable risk of injury due to fire caused by persons being delayed in or impeded from moving to a safe place during a fire emergency.

Functional Statement F03, associated with Article 3.1.3.2. of Division B, states:

To retard the effects of fire on areas beyond its point of origin.

Functional Statement F10 associated with Article 3.1.3.2. of Division B, states:

To facilitate the timely movement of persons to a safe place in an emergency.

The Commission heard testimony from an expert witness that a sprinkler system is not sufficient to suppress or extinguish a fire started in a self-service storage facility and that specialized materials are required to suppress or extinguish such fires. Further, the Commission heard that the firefighting strategy for a fire in this type of building would be to prioritize the rescue of residents at risk. Due to the size and occupant load of the residential portions of this building, delays in extinguishing the fire could occur, which in turn, increases the risk to persons in or adjacent to the building.

Based on the evidence and testimony presented, it is the Commission’s opinion that sufficiency of compliance with Objective Statement OS1.5 and Functional Statements F03 and F10 are not achieved with the proposed alternative solution.

v) Objective OS2.1 associated with Article 3.1.3.2. of Division B states:

Based on the testimony and evidence heard, it is the Commission’s opinion that limiting the volume and types combustible content permitted in a storage is not possible without strict enforcement. Further, the Commission heard that with higher combustible content the risk of fire and explosion also increases.

Therefore, it is the Commission’s opinion that sufficiency of compliance with Objective Statement OS2.1 is not achieved.

vi) Functional Statement F02, associated with Article 3.1.3.2. of Division B, states:

To limit the severity and effects of fire or explosions.

The Commission heard that the primary supporting structure for the residential tower is located within the proposed self-service storage facility and that a fire burning for an extended period of time could compromise the structural integrity of the building.

Therefore, it is the Commission’s opinion that sufficiency of compliance with Objective Statement F02 is not achieved.

Dated at the City of Toronto this 5th day in the month of March in the year 2020 for application number B-2019-31.

Alison Orr, Chair Designate

Christina Kalt

Michael Egberts

Randle v. Johnston, 2020 ONBCC 6

Case Summary