Ruling No.: 21-08-1182
Application No.: B-2020-24
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 Article 3.8.2.1 of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Mark Baily, for the resolution of a dispute with Jeremy Laur, Chief Building Official, to determine whether the proposal to not provide a barrier-free access to the new second floor of a two storey, Group F Division 2 occupancy building, provides sufficiency of compliance with Article 3.8.2.1 of Division B of the Ontario Building Code at, 3-275 Hanlon Creek Blvd, Guelph, Ontario.
APPLICANT Mark Baily 9085670 Canada Inc. Guelph, Ontario
RESPONDENT Jeremy Laur Chief Building Official City of Guelph, Ontario
PANEL Stephen Wong, Chair Lisa Miller-Way Michael Gooch
PLACE City of Toronto, Ontario
DATE OF HEARING March 25, 2021
DATE OF RULING March 25, 2021
APPEARANCES Mark Baily 9085670 Canada Inc. Guelph, Ontario The Applicant
Jeremy Laur Chief Building Official City of Guelph, Ontario Respondent
Becky Montyro Plans Examiner City of Guelph, Ontario Designate for the Respondent
Nicholas (Nick) Rosenberg Program Manager of Permits City of Guelph, Ontario Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant has received a permit under the Building Code Act, 1992 to construct a second floor within a condominium unit in an existing 2-storey industrial building, to accommodate additional office space. The building is located at 3-275 Hanlon Creek Blvd, Guelph, Ontario.
The subject building is an existing two storey, Group F Division 2 industrial building with a building area of 1,142 m2. The unit (suite) in question has a ground floor area of approximately 372 m2 (4,000 square feet). The building permit was for the construction of a second floor within the existing unit. The area of the second floor is about 162 m2 and is not open to the ground floor area below. A platform lift was indicated on the permit drawings to provide barrier-free access to the second floor. It is proposed to not provide the barrier-free lift.
The construction in dispute centres on whether the proposal to not provide barrier-free access to the new second floor of the subject building, provides sufficiency of compliance with Article 3.8.2.1. of Division B of the Building Code (the Code).
2. Provisions of the Building Code in Dispute
3.8.2. Occupancy Requirements
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.
(2) A barrier-free path of travel described in Clause (1)(b) is not required to extend,
(a) to floor areas or portions of floor areas containing a Group B, Division 2 or 3 occupancy that are not required by Article 3.5.2.1. to be connected by a ramp or served by an elevator,
(b) to Group C or Group D occupancies that are in floor areas in a building that,
(i) is three or fewer storeys in building height, and
(ii) has a building area not exceeding 600 m2,
(c) to Group F, Division 2 or 3 occupancies that are not required by Sentence 3.8.2.2.(1) to be served by an elevator,
(d) to portions of restaurants and licensed beverage establishments where the same amenities and uses are provided on other floor areas that have a barrier-free path of travel, or
(e) to portions of child care facilities that have all entrance doors at floor levels that do not have a barrier-free path of travel.
(3) A barrier-free path of travel described in Sentence (1) is not required to extend,
(a) into service rooms,
(b) into elevator machine rooms,
(c) into janitors’ rooms,
(d) into service spaces,
(e) into crawl spaces,
(f) into attic or roof spaces,
(g) into high hazard industrial occupancies,
(h) to portions of a floor area with fixed seats in an assembly occupancy where these portions are not part of the barrier-free path of travel to,
(i) spaces designated for wheelchair use,
(ii) seats designated for adaptable seating, or
(iii) spaces for the storage of wheelchairs and mobility assistive devices,
(i) to suites of residential occupancy that are in storeys other than the entrance storey and that have all entrance doors at floor levels that are not required to have a barrier-free path of travel,
(j) except as required by Sentence (5), on the inside of a suite of residential occupancy, or
(k) to portions of a floor area that are not at the same level as the entry level, provided amenities and uses provided on any raised or sunken level are accessible on the entry level by means of a barrier-free path of travel
3. Applicant’s Position
The Applicant submitted that he purchased the condominium unit in a new shell building in 2014. The ground floor area of the unit is approximately 372 m2 (4,000 square feet) and the height of the ceiling is approximately 10 m high. He constructed about 149m2 (1,600 square feet) of office space with the budget he had at the time of construction. At the time, he also investigated constructing the ceiling over the office space with floor joists, which would be suitable for constructing a second floor at a later date.
At this time, the Applicant explained that he decided to construct the second floor office space of about 162 m2. His architect advised him that barrier-free access may be an issue. As a result, the Applicant explained that he contacted the municipal building department to inquire and was advised that a platform lift would be required. He understood that a lift would cost approximately $8,000.
During the permit approval process, the specifications for the platform lift were requested by the municipality. The Applicant submitted that, if he had known that a lift that meets the requirements of the municipality would cost approximately $60,000, he would have halted the second floor project.
The Applicant submitted three arguments to support his position that the platform lift to provide barrier-free access to the second floor is not necessary as follows:
- Code flexibility should be considered for small business owners.
The Applicant stated that he believed the lift would never be used, and that the COVID pandemic outbreak has put undue hardship on small businesses. The Applicant argued for a fair opportunity to develop the building and temper the requirements for barrier-free access, as he does not believe the Code has considered the current situation.
- The proposed design meets the technical exemptions provided in the Code.
The Applicant submitted that the second floor is classified as either a Group D or a Group F2 occupancy. As a Group D occupancy, the Applicant indicated that Clause 3.8.2.1.(2)(b) of Division B of the Code exempts the requirement for a barrier-free path of travel to the second floor if the building is three or fewer stories in building height, and the building area does not exceed 600 m2. The Applicant also argued that his unit has a ground floor area of about 400m2 and is less than 3 storeys, and therefore should qualify for this exemption.
The Applicant submitted that for Group D and F occupancies, Clause 3.8.2.1.(3)(k) of the Code does not require the barrier-free path of travel to extend to the portion of the floor area that are not on the same level as the entry level, provided amenities and uses provided on the raised floor level are accessible on the entry level by means of a barrier-free path of travel. The Applicant argued that all amenities are on the entry level which is provided with a barrier-free path of travel and therefore, this exemption could be applied. The Applicant argued that the proposed design offers no services not already available on the main floor.
The Applicant believed that the City would accept the second floor as a mezzanine if it was less than 10% of the ground floor area of his unit, and quoted sentence 9.10.4.1.(1) of Division B of the Code. However, as the proposed second floor area is over 10%, it is not accepted as a mezzanine nor as a raised floor level by the municipality. The Applicant argued that there is no functional difference between the second floor being proposed as a mezzanine even though its floor area exceeds 10% of the unit’s ground floor area. The area of a 10% mezzanine would only be 37 m2 (400 square feet) in this case, which would be prohibitive to develop.
- There is case precedence to consider.
The Applicant submitted that two units located in the same building, with the identical situation, were exempt from providing barrier-free access to the second floors.
The Applicant explained that his unit was identical in size to another one, Unit 1, in the same building, which was sold and developed at the same time. The Applicant advised that the unit was finished within a few years of each other. Unit 1 was issued a building permit in October 2014. The Applicant submitted that he believed the Building Code in 2014 was nearly identical to the requirements in the current version. Therefore, the Applicant is of the opinion that the exemption provided to Unit 1 should also apply in this case.
In response to questions, the Applicant confirmed that there are five offices, one work cubicle office, one boardroom, and an open office space on the proposed second floor, and the second floor can be accessed directly from the ground floor entrance lobby using a stair. The Applicant also confirmed that his unit is Unit 3 in a multi-unit building.
In summary, the Applicant submitted that it is his position, when considering the above three arguments, that an exemption could be considered for the proposed design to not install the platform lift.
4. Respondent’s Position
The Designate for the Respondent submitted that the building area, as defined by the Code, is 1,142 m2 for the Group F2 industrial building where the Applicant’s unit is located, and that the proposed Group D occupancy does not meet the exemption permitted in Clause 3.2.8.1.(2)(b) of Division B of the Code since the building area is greater than 600 m2.
The Designate indicated that Clause 3.8.2.1.(3)(k) of Division B of the Building Code speaks to a raised floor. In this case, the Designate argued that the space is clearly defined as a second floor, based on the second floor area being greater than 10% of the ground floor area of the suite. The Designate explained that it is an entirely different storey and is not a raised floor area. The Designate submitted that this provision typically applies to a platform in a restaurant, which has the same amenities on the main level.
In response to questions, the Respondent clarified the reason why the other unit in the same building, as mentioned by the Applicant, did not require an elevator to be installed. The Respondent explained that the building permit for the other unit was issued in 2014, and that the requirement for barrier-free access to the second floor came into effect in 2015. This revision is noted in the margin of the Code next to Article 3.8.2.1. as r4. The Respondent further submitted that the building permit for the second floor addition in question was issued in 2019, a few years after this amendment. The Respondent indicated that a Human Rights Commission decision led to the 2015 changes to the Code for barrier-free access requirements to buildings.
The Respondent submitted that an alternative solution has not been proposed by the Applicant and further, no compensating measures have been offered. The Applicant is simply asking for an exemption in this case.
In summary, the Designate and Respondent submitted that the Applicant’s proposal not to include barrier-free access to the proposed second floor of the unit, does not provide sufficiency of compliance with the Code.
5. Commission Ruling
It is the decision of the Building Code Commission that the proposal to not provide a barrier-free access to the new second floor of a two storey, Group F Division 2 occupancy building, does not provide sufficiency of compliance with Article 3.8.2.1 of Division B of the Building Code at, 3-275 Hanlon Creek Blvd, Guelph, Ontario.
6. Reasons
i) Sentence 3.8.2.1.(1) of Division B of the Building Code states:
(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.
The Commission heard evidence and testimony that the second floor is intended to be used for offices that are to be normally occupied. It is the Commission’s opinion that as the second floor space is intended to be a normally occupied space, barrier-free access to the second floor is required and therefore, sufficiency of compliance with Sentence 3.8.2.1.(1) is not achieved.
ii) Sentences 3.8.2.1.(2) and (3) provide exceptions where a barrier-free path of travel would not be required.
Clause 3.8.2.1.(2)(b) of Division B of the Building Code states:
A barrier-free path of travel described in Clause (1)(b) is not required to extend, to Group C or Group D occupancies that are in floor areas in a building that,
(i) is three or fewer storeys in building height, and
(ii) has a building area not exceeding 600 m2,
(see Appendix A)
The Commission notes that “building area” is a defined term in the Building Code. As per Article 1.4.1.2. building area is defined as:
Building area means the greatest horizontal area of a building above grade,
(a) within the outside surface of exterior walls, or
(b) within the outside surface of exterior walls and the center line of firewalls.
The Commission received evidence that the building area of this building is 1,142 m2. As a result, the exemption provided for in this Clause is not applicable to this building.
Clause 3.8.2.1.(3)(k) states:
A Barrier-free path of travel described in Sentence (1) is not required to extend, to portions of a floor area that are not at the same level as the entry level, provided amenities and uses provided on any raised or sunken level are accessible on the entry level by means of a barrier-free path of travel. (See Appendix A)
The Commission heard the Applicant’s argument that the proposed second floor would provide the same amenities as provided on the first level of the suite and therefore, could be considered a raised floor area. However, the Commission received evidence that the subject second level is a storey, not a mezzanine.
As a result, the second floor can not be considered a raised or sunken level within the first floor area and therefore, the exemption under Clause 3.8.2.1.(3)(k) is not applicable.
Dated at the City of Toronto this 24th day in the month of March in the year 2021 for application number B-2020-24.
Stephen Wong, Chair
Lisa Miller-Way
Michael Gooch