Ruling No.: 21-13-1187
Application No.: B 2021-06
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 subsection 8(1) and the definition of “construct” as per subsection 1(1) of the Building Code Act, and Articles 1.1.2.5. and 1.1.2.6. of Division A and Sentences 9.11.1.1.(1), 10.1.1.2.(1), 10.4.1.1.(2) and Table 11.5.1.1.C. Item no. 152 of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Raymond Johnston and Kathleen Roach, for the resolution of a dispute with Dean Findlay, Chief Building Official, to determine whether the proposal to use the existing gypsum board installed on the basement ceiling for the construction of a new secondary suite provides sufficiency of compliance with subsection 8(1) and the definition of “construct” as per subsection 1(1) of the Building Code Act, and Articles 1.1.2.5., and 1.1.2.6. of Division A and Sentences 9.11.1.1.(1), 10.1.1.2.(1), 10.4.1.1.(2), and Table 11.5.1.1.C. Item no. 152 of Division B of the Building Code at 806 Brookdale Crescent, Peterborough, Ontario.
APPLICANT Raymond Johnston and Kathleen Roach
Owners
Whitby, Ontario
RESPONDENT Dean Findlay
Chief Building Official
City of Peterborough
Peterborough, Ontario
PANEL Stephen Wong, Chair
Leszek Muniak
Christina Kalt
PLACE City of Toronto, Ontario
DATE OF HEARING July 15, 2021
DATE OF RULING July 15, 2021
APPEARANCES Raymond Johnston and Kathleen Roach
Owners
Whitby, Ontario
The Applicant
Dean Findlay
Chief Building Official
City of Peterborough
Peterborough, Ontario
The Respondent
Devin Durish
Coordinator of Permitting Services
City of Peterborough
Peterborough, Ontario
The Designate for the Respondent
Alan Barber
Associate City Solicitor
City of Peterborough
Peterborough, Ontario
The Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant received a building permit under the Building Code Act, 1992, to legalize an existing secondary suite at 806 Brookdale Crescent, Peterborough, Ontario.
The subject building is an existing single-storey, combustible, Group C residential building constructed more than five years ago. The Applicant purchased the property where illegal construction had taken place under the previous owner for the purposes of creating a second dwelling unit in the basement. There is a tenant currently living in the illegal unit.
The construction in dispute involves the proposal by the Applicant to use the existing floor assembly, which includes gypsum board installed on the basement ceiling by the previous owner without a permit, to separate the second dwelling unit in the basement from the existing dwelling unit on the main floor.
Sentences 9.11.1.1.(1), 10.1.1.2.(1), 10.4.1.1.(2), and Table 11.5.1.1.C. Item no. 152 of Division B of the Building Code (“the Code”) provide technical requirements for the fire and sound resistance of building assemblies separating Group C dwelling units. Articles 1.1.2.5. and 1.1.2.6. of Division A of the Code pertain to the application of Parts 10 and 11 of Division B. The remaining subsections referenced by the Respondent pertain to the Building Code Act (“the Act”), in particular, subsection 8(1) and the definition of “construct” as per subsection 1(1) of the Act.
At the outset of the proceedings, the Respondent requested that the Commission consider whether it had jurisdiction to make a determination in the matter.
The Commission informed the parties that the panel would need to address the jurisdictional matter before hearing any technical matter. The Commission requested that the parties speak to the issue of jurisdiction.
2. Provisions in Dispute
Building Code Act
Definitions
1(1) In this Act, “construct” means to do anything in the erection, installation, extension or material alteration or repair of a building and includes the installation of a building unit fabricated or moved from elsewhere and “construction” has a corresponding meaning; (“construire”, “construction”, “travaux de construction”).
Building Permits
8(1) No person shall construct or demolish a building or cause a building to be constructed or demolished unless a permit has been issued therefor by the chief building official.
Change of Use
10(1) Even though no construction is proposed, no person shall change the use of a building or part of a building or permit the use to be changed if the change would result in an increase in hazard, as determined in accordance with the building code, unless a permit has been issued by the chief building official.
Building Code
Division A
1.1.2.5. Application of Part 10
(1) Part 10 of Division B applies to existing buildings requiring a permit under section 10 of the Act.
1.1.2.6. Application of Part 11
(1) 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.
(2) If a building has been in existence for at least five years but includes an addition that has been in existence for less than five years, Part 11 of Division B applies to the entire building.
Division B
9.10.3.1. Fire-Resistance and Fire-Protection Ratings
(1) Where a fire-resistance rating or a fire-protection rating is required in this Section for an element of a building, such rating shall be determined in conformance with the test methods described in Part 3, or in accordance with MMAH Supplementary Standard SB-2, “Fire Performance Ratings”, or MMAH Supplementary Standard SB-3, “Fire and Sound Resistance of Building Assemblies”.
9.11.1.1. Required Protection
(1) Except as provided in Sentence (2), a dwelling unit and a suite in hotels shall be separated from every other space in a building in which noise may be generated by,
(a) a separating assembly and adjoining construction, which, together, provide an apparent sound transmission class rating of not less than 47, or
(b) a separating assembly that provides a sound transmission class rating of at least 50 and adjoining construction that conforms to Article 9.11.1.4.
10.1.1.2. Change in Major Occupancy
(1) The following changes of use are also deemed to be a change in major occupancy for the purposes of this Part:
(a) a suite of a Group C major occupancy is converted into more than one suite of a Group C major occupancy,
(b) a suite or part of a suite of a Group A, Division 2 or Group A, Division 4 major occupancy is converted to a gaming premises,
(c) a farm building or part of a farm building is changed to a major occupancy,
(d) a building or part of a building is changed to a post-disaster building,
(e) a building or part of a building is changed to a retirement home, or
(f) the use of a building or part of a building is changed and the previous major occupancy of the building or part of the building cannot be determined.
10.4.1.1. Substitution
(2) Except as provided in Sentence (3), a compliance alternative to a requirement contained in Part 9 or 12 shown in Tables 11.5.1.1.C., 11.5.1.1.D/E. or 11.5.1.1.F. may be substituted for the requirement without satisfying the chief building official that the requirement is impracticable.
Table 11.5.1.1.C.
C152
(a) Except as provided in (b) and (c), 30 min fire separation is acceptable.
(b) In a house, 15 min horizontal fire separation is acceptable where,
(i) smoke alarms are installed in every dwelling unit and in common areas in conformance with Subsection 9.10.19., and
(ii) smoke alarms are interconnected.
(c) In a house, the fire-resistance rating of the fire separation is waived where the building is sprinklered.
3. Applicant’s Position
The Applicant submitted that the proposed construction pertains to change of use under Part 10 Change of Use of Division B of the Code. The Applicant also indicated that the primary intent for initiating this permitting process was to legalize the second dwelling unit located in the basement.
Moreover, according to the Applicant, a permit was already issued by the Respondent for the change of use. The Applicant confirmed the permit was issued on the condition that sound attenuation between the two dwelling units be provided in accordance with Sentence 9.11.1.1.(1) of Division B of the Code.
However, the Applicant submitted that nowhere in Part 10 Change of Use of Division B of the Code does it state that sound attenuation between the two units is required, regardless of whether the proposed construction pertains to a new or existing house. Further, the Applicant argued that sound attenuation is not a life safety issue and therefore, should not be required.
In response to the Designate’ s reference to Sentence 1.1.2.6.(1) of Division A of the Code, which pertains to the application of Part 11 Renovation of Division B of the Code, as being in dispute, the Applicant suggested that only Sentence 1.1.2.5.(1) of Division A of the Code, which pertains to the application of Part 10 Change of Use of Division B of the Code, applies to the proposed construction to legalize the existing second dwelling unit, not to renovate per Sentence 1.1.2.6.(1).
4. Respondent’s Position
The Designate for the Respondent submitted that the second dwelling unit was constructed by a previous owner without a permit in violation of subsection 8(1) of the Act. In the absence of a permit, the Designate indicated that there is no reliable evidence to answer the question of when the illegal basement unit was constructed.
The Designate confirmed that the existing residential building was constructed more than five years ago and that the Applicant had submitted an application for a permit to legalize the illegal basement unit. The Designate submitted evidence confirming the permit was issued on the condition that sound attenuation between the two dwelling units be provided in accordance with Sentence 9.11.1.1.(1) of Division B of the Code.
According to the Designate, the Applicant is currently seeking the benefit of Sentence 1.1.2.6.(1) of Division A of the Code, which pertains to the application of Part 11 Renovation of Division B of the Code. It is the Designate’ s position that this Sentence cannot be read in isolation and that to do so would offend the rules of statutory interpretation. Rather, the intent and purpose of the Code and Act must be considered together. The Designate submitted that the primary intent and purpose of the Code and Act is human safety, achieved through means which include obtaining a permit to ensure compliance with the Code, uniform construction and competent inspection.
The Designate indicated that statements submitted by the Applicant do not provide evidence concerning the uniformity of, for example, the fire separation between the units nor do they provide any evidence of the sufficiency of sound attenuation between the units.
The Designate further submitted that the Code and Act are not intended to shield the Applicant from the consequences of illegal construction carried out by the previous owner. Rather, obtaining a permit to ensure compliance with the Code and Act is a mechanism intended to protect subsequent owners from the illegal acts of previous owners.
In reference to subsection 24(1) of the Act, which states that the Commission can only hear matters pertaining to sufficiency of compliance with the technical requirements of the Building Code, the Designate submitted that because the question of when the illegal basement unit was constructed raises a mixed question of fact and law, it falls outside of the jurisdiction of the Commission.
5. Commission Ruling
It is the decision of the Building Code Commission that under clause 24(1)(a) of the Building Code Act, 1992, the Commission does not have the jurisdiction to make a determination on the issues raised in relation to the matter at 806 Brookdale Crescent, Peterborough, Ontario.
6. Reasons
i) Subsection 24(1) of the Building Code Act, 1992, provides the Commission with the jurisdiction to resolve disputes between a permit applicant, permit holder or a person to whom an order has been issued and the chief building official, a registered code agency or inspector concerning the sufficiency of compliance with the technical requirements of the Code.
While a permit has already been issued by the chief building official, the approved drawings require compliance with Parts of the Code related to horizontal fire separation and sound attenuation between the two dwelling units. The dispute pertains to whether provisions under Part 11 Renovation of Division B of the Code apply since the existing building, while more than five years old, contains an illegally constructed second dwelling unit in the basement. The Commission notes that the date of the illegal construction has not been established and the determination of when the illegal unit was constructed is not a technical matter.
ii) The Commission acknowledges that there is a dispute between the chief building official and the Applicant. However, the Commission, as indicated above, has a very narrow jurisdiction as outlined in subsection 24(1) of the Act. Disputes concerning compliance with subsections 1(1), 8(1) and 10(1) of the Act and Division A of the Code are not disputes that are identified in subsection 24(1) of the Act. Therefore, the Commission does not have jurisdiction to make a determination in this matter.
Dated at the City of Toronto this 15th day in the month of July in the year 2021 for application number B-2021-06.
Stephen Wong, Chair
Leszek Muniak
Christina Kalt