Ruling No.: Ruling No.: 21-03-1177
Application No.: B-2020-18
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 Clause 9.9.9.3(1)(b) of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by James Pelletier, for the resolution of a dispute with Ed VanderWindt, Chief Building Official, to determine whether the proposal to provide one means of egress from the basement dwelling units of an existing 6-unit residential building, provides sufficiency of compliance with Clause 9.9.9.3(1)(b) of Division B of the Building Code at 81 Hamilton Street, North, Flamborough, Ontario.
APPLICANT James Pelletier
Owner
City of Hamilton
RESPONDENT Ed VanderWindt
Chief Building Official
City of Hamilton, Ontario
PANEL Stephen Wong, Chair
Christina Kalt
Rick Mori
PLACE City of Toronto, Ontario
DATE OF HEARING March 2, 2021
DATE OF RULING March 2, 2021
APPEARANCES Dave Martin
Mantecon Partners Inc.
Dundas, Ontario
Agent for the Applicant
Radek Wodzinowski, M.A.Sc., P. Eng
Building Engineer
City of Hamilton, Ontario
Designate for the Respondent
George Wong, P. Eng
Chief Building Engineer
City of Hamilton, 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 repair and make alterations to one of the two basement units that was damaged in a fire at 81 Hamilton Street North, Ontario.
The subject building is a two-storey, six-unit residential building, with two units in the basement, two units on the ground floor and two units on the second floor. The building is of combustible construction and is not sprinklered. The two units in the basement are referred to as Unit 5 and Unit 6.
A building permit was applied for, to make repairs and alterations to Unit 6, which was damaged by the fire, converting it from a one-bedroom unit to a two-bedroom unit. Both Units 5 and 6 open onto a public corridor that leads to one common exit. There are presently no other exits from the basement.
The dispute before the Commission is whether the proposal to provide one common means of egress from the two basement dwelling units provides sufficiency of compliance with Clause 9.9.9.3.(1)(b) of Division B of the Building Code (the Code).
2. Provisions of the Building Code in Dispute
9.9.9.3 Shared Egress Facilities
(1) A dwelling unit shall be provided with a second and separate means of egress where an egress door from the dwelling unit opens onto,
(b) a public corridor,
(i) serving more than one suite and
(ii) served by a single exit,
3. Applicant’s Position
The Agent for the Applicant submitted that a minor variance from the Committee of Adjustment from the Township of Flamborough was approved in 1998 to convert the building from a 5-unit apartment building to a 6-unit apartment building. Subsequent to this approval a building permit was obtained to create Unit 6 in the basement of the building. The Agent explained that the Township of Flamborough was amalgamated with the City of Hamilton in the year 2000. A search of the records held by the Hamilton Building Department was unable to produce a copy of the permit issued by the Township of Flamborough. Therefore, a letter from the contractor who completed the conversion was submitted, which stated that a permit was issued in 1998 with a single exit from the basement and the only additional requirement was the installation of three large windows in Unit 6.
The Agent also submitted copies of lease agreements and property insurance agreements in an effort to prove that the units in the basement have been occupied since 1998.
A letter submitted by the Agent as part of his Application to the Commission also indicated that if a second means of egress was required, he would propose an alternative solution to use the existing windows as the second exit. In reference to the photos submitted, the Agent provided further clarification regarding the location and dimensions of the existing windows in Unit 6.
In response to questions, the Agent confirmed that the drawings submitted for the building permit did not indicate that the windows were intended as a second means of egress and that there has been no discussion with the building department with respect to such an alternative solution proposal. The Agent was reminded by the Chair that if an alternative solution was to be proposed, it should be addressed to and discussed with the municipality as the authority having jurisdiction for consideration and resolution.
The Applicant stated that the safety of his tenants was a primary concern, and that he will be adding interconnected smoke alarms, carbon monoxide detectors and fire extinguishers within the corridor space and throughout the building as additional safety measures.
In summary the Agent submitted that the two units in the basement have been occupied since 1998 with a single means of egress and that the existing windows were considered to be the second means of egress when the permit for the conversion was obtained in 1998.
4. Respondent’s Position
The Designate for the Respondent acknowledged that the configuration of the exiting from the basement has been in existence since 1998. However, he reported that he was unable to find any record of the permit that was issued in 1998 to construct the second basement unit.
In response to questions, the Designate advised that if a valid building permit had been issued, the building department would have accepted the existing exit conditions.
As the Designate was not able to establish a legal non-conforming use, by way off a building permit, he explained that he is required to apply the current Building Code requirements to the building permit application.
In response to questions, Ministry staff also advised that there have been no Code changes since 1990 that would have altered the requirement for two means of egress for this basement unit.
The Designate advised that Units 5 and 6 open onto a public corridor that leads to a single exit. The Designate submitted that Clause 9.9.9.(3)(1)(b) requires a second and separate means of egress where a dwelling unit opens onto a public corridor serving more than one suite and is served by a single exit.
The Designate indicated that as the building is more than five years old, Part 11 of the Building Code may be applied to the Application. In accordance with the requirements of the Code in Division B, Part 11, the proposed construction results in a material alteration requiring an evaluation of the performance level and the undertaking of any compensating construction as required under Section 11.4. of Division B of the Code.
In accordance with Sentence 11.4.2.3.(1) of Division B of the Building Code, the performance level of an existing building is reduced where the proposed construction will result in a change of major occupancy based on Clause (g), where “the change in use of a building or part of a building where the previous major occupancy of the building or part of a building cannot be determined.” The Designate confirmed that this hearing is only dealing with the exit requirements of the Code with respect to the reduction in performance level.
The Designate reported that there are no Compliance Alternatives in Part 11 of Division B of the Building Code that would alleviate the requirement for a second and separate means of egress from Unit 6. He advised that Compliance Alternative C136 of Table 11.5.1.1.C of the Code, which addresses windows as an additional means of egress, does not apply where there are more than two dwelling units in the building. Therefore, the use of windows as an additional means of egress was not considered or evaluated. The Designate indicated that there were no other compensating measures proposed to satisfy the requirement for a second and separate means of egress.
In summary, the Designate submitted that a second and separate means of egress was required and that the existing windows could not be considered to satisfy the requirement set out in Clause 9.9.9.(3)(1)(b) of Division B of the Building Code.
5. Commission Ruling
It is the decision of the Building Code Commission that the proposal to provide one means of egress from Unit 6 in the basement dwelling unit of a six unit residential building, does not provide sufficiency of compliance with Clause 9.9.9.3.(1)(b) of Division B of the Building Code at 81 Hamilton Street North, Hamilton, Ontario.
6. Reasons
i) Clause 9.9.9.3.(1)(b) of Division B of the Building Code, regarding shared means of egress, states:
(1) A dwelling unit shall be provided with a second and separate means of egress where an egress door from the dwelling unit opens onto,
(b) a public corridor,
(i) serving more than one suite and
(ii) served by a single exit,
The Commission heard evidence and testimony that a single public corridor leading to one exit is currently the sole means of egress from the basement that serves Units 5 and 6.
The Commission heard that neither party was able to provide evidence that a building permit was obtained for the construction of Unit 6 in 1998 with a single means of egress from the basement. Thus, the argument of a legal non-conforming use could not be established.
No alternative solution was presented by the Agent and no review was conducted by the building department to determine whether the existing windows serving Unit 6 could be considered a second and separate means of egress. Therefore, while the Commission took note of the size and location of the windows, they were not assessed as a second means of egress as this was not part of the dispute before the Commission.
There are similarly no Compliance Alternatives in Part 11 with respect to the exit requirements in Subsection 9.9.9. that would permit a single means of egress from a residential building containing more than two dwelling units.
For the above reasons, it is the Commission’s opinion that sufficiency of compliance with Clause 9.9.9.3.(1)(b) of Division B of the Building Code is not achieved.
Dated at the City of Toronto this 2nd day in the month of March in the year 2021 for application number B- 2020-18.
Stephen Wong, Chair
Christina Kalt
Rick Mori