Citation: Ottoborgo v. Szonyi 2021 ONBCC 15

Ruling No.: 21-15-1189

Application No.: B-2021-09

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 3.8.1.2.(1) and 3.8.1.1.(1) of Division B of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by 1422754 Ontario Limited, for the resolution of a dispute with Andras Szonyi, Chief Building Official, to determine whether the proposed two storey mixed-use building containing commercial units on the ground floor and 10 residential townhouse suites on the second floor of the building that has been designed without barrier-free requirements, provides sufficiency of compliance with Clause 3.8.1.1.(1)(a) and Article 3.8.1.2. of Division B when considering the definition of “house”: as per Article 1.4.1.2. of Division A of the Building Code at Village Green, 19267 Centre Street, Mount Albert, Town of East Gwillimbury, Ontario.

APPLICANT Vania Ottoborgo Director of Operations and Development 1422754 Ontario Limited Concord, Ontario, Ontario

RESPONDENT Andras Szonyi Director of Building Standards / Chief Building Official Town of East Gwillimbury, Sharon, Ontario

PANEL Alison Orr, Chair David Annable Leszek Muniak

PLACE via video conference

DATE OF HEARING August 19, 2021

DATE OF RULING August 19, 2021

APPEARANCES Vania Ottoborgo Director of Operations and Development 1422754 Ontario Limited Concord, Ontario Applicant

Matteo Gilfillan President Mateo Gilfillan and Associates Ltd. Vaughan, Ontario Agent for the Applicant

Alyson Klein Mateo Gilfillan and Associates Ltd. Vaughan, Ontario Agent for the Applicant

Andras Szonyi Director of Building Standards / Chief Building Official Town of East Gwillimbury, Sharon, Ontario Respondent

Chris Burns Deputy Chief Building Official Town of East Gwillimbury, Sharon, Ontario Designate for the Respondent

RULING

1. Particulars of Dispute

The Applicant has applied for a permit under the Building Code Act, 1992, to construct a building at 19267 Centre Street, Mount Albert, Town of East Gwillimbury, Ontario.

The subject building is a two-storey, mixed-use building having a building area of approximately 1,299 m². The building is designed to Part 3 of Division B of the Building Code. At the ground floor, there are Group D, business and personal services major occupancy commercial units. The second floor consists of 10 independent residential units (Group C, residential major occupancy), that each have separate entrances and private parking garages at the ground floor level. The residential units are fire separated from the commercial units. The residential units are independent from each other and independent from the commercial units below. The residential units have no shared internal corridors.

The construction in dispute centres on whether the 10 residential units located on the second floor of the building that has been designed without barrier-free requirements, provides sufficiency of compliance with Clause 3.8.1.1.(1)(a) and Article 3.8.1.2. of Division B when considering the definition of “house”: as per Article 1.4.1.2. of Division A of the Building Code

Barrier-free accessibility to the commercial units is not in dispute as it will be provided in compliance with Section 3.8. of Division B of the Building Code.

2. Provisions of the Building Code in Dispute

Division A, 1.4.1.2. Defined Terms

House means a detached house, semi-detached house or row house containing not more than two dwelling units.

Division B, 3.8.1.1. Application

(1) The requirements of this Section apply to all buildings except,

(a) houses, triplexes and boarding or rooming houses with fewer than 8 boarders or roomers,

Division B, 3.8.2.1. Areas Requiring Barrier-Free Path of Travel

(1) Except as permitted by Sentence (3), a barrier-free path of travel from the entrances required by Sentences 3.8.1.2.(1) and (3) to be barrier-free shall be provided,

(a) throughout the entrance storey,

(b) except as permitted by Sentence (2), to and throughout all normally occupied floor areas and rooftop amenity spaces, and

(c) throughout all normally occupied floor areas and rooftop amenity spaces that,

(i) are exempt from the application of Clause (b), and

(ii) are served by a passenger elevator, escalator, inclined moving walk, or other platform equipped passenger elevating device.

3. Applicant’s Position

The Agent for the Applicant submitted that it is the position of the Applicant that the residential units are stacked townhouses, and fall under the Building Code’s definition of the word “house” and that the term “townhouse” is captured by the use of the term “row house” in the definition of “house”. Therefore, the Agent argued, that the stacked residential units should be exempt from the requirements of Sentence 3.8.1.2.(1) for barrier-free accessibility throughout all normally accessible floor areas.

The Agent summarized the history of conversations and correspondence with the Town of East Gwillimbury regarding attempts to resolve the dispute. He explained that the Respondent contends that the defined term “house” applies to townhouses as a separate residential occupancy and that there is no provision in the Building Code to permit a mixed-use building to be classified as a house.

The Agent described the building as being a mixed-use, major occupancy building with commercial (Group D) units on the ground floor and 10 residential (Group C) units on the second floor. The construction between the commercial units and the residential units provides a 2 h fire separation between the major occupancies.

The Agent submitted that the second-storey residential units each have a floor area of 200 m² with a private garage on the ground level that is part of the residential unit and are accessed directly from the ground floor. The Agent advised that the although the residential units are stacked on top of the commercial units, they are independent from one another, have no shared corridors, no shared exits and no elevators.

The Agent stated that the residential units should be considered stacked townhouses and therefore, meet the conditions provided in Article 3.8.1.1 for the exemption from barrier-free accessibility requirements.

The Agent submitted that if the subject design did not contain a commercial component on the ground floor, there would be no dispute and no need to provide barrier-free accessibility to the residential units.

4. Respondent’s Position

The Respondent stated that the dispute involves the application of the Building Code’s defined term “house” to the design of the mixed-use commercial and residential complex. The Respondent maintained that the term “house” cannot be applied to a stacked townhouse that includes non-residential units.

The Respondent’s position is that the second-storey residential units should not be considered separate from the building. The Respondent contended that the design of the building does not satisfy the defined term “house” since the ground floor is proposed to be commercial. Therefore, the exemption provided in Article 3.8.1.1. of the Building Code does not apply to this building.

In summary the Respondent submitted that the incorporation of the commercial element in the townhouse design does not permit the application of the exemption of barrier-free accessibility for townhouses.

5. Commission Ruling

It is the decision of the Building Code Commission that the proposed two storey mixed-use building containing commercial units on the ground floor and 10 residential units on the second floor of the building that has been designed without barrier-free requirements for the residential suites, provides sufficiency of compliance with Clause 3.8.1.1.(1)(a), when considering the definition of “house” as per Article 1.4.1.2. of Division A of the Building Code at Village Green, 19267 Centre Street, Mount Albert, Town of East Gwillimbury, Ontario.

6. Reasons

i) Article 1.4.1.2. of Division A of the Building Code defines house as, “a detached house, semi-detached house or row house containing not more than two dwelling units.”

The Commission heard evidence and testimony that each residential unit has its own individual garage for parking and exterior private access to each suite.

The Commission also heard that the residential units have no common amenities and do not share any common entrances or corridors. Further, the commercial space located at the front of the building on the ground floor will meet the barrier free requirements as per Section 3.8 of the Building Code.

It is the Commission’s opinion that the subject residential units can be considered characteristically similar to a “house” as defined in the Building Code, as each unit is private and independent from the commercial space and other residential units.

Dated at the City of Toronto this 19th day in the month of August in the year 2021 for application number B-2021-09.

Alison Orr, Chair Designate

Leszek Muniak

Dave Annable