Ruling No.: 22-01-1593
Application No.: B-2021-17
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 3.3.1.17.(5) of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by David Heska, for the resolution of a dispute with Ed VanderWindt, Chief Building Official, to determine whether the size of the openings of the installed guards, provides sufficiency of compliance with sentence 3.3.1.17.(5) of Division B of the Building Code at Tim Hortons Field, 64 Melrose Avenue North, Hamilton Ontario.
APPLICANT David Heska WSP Canada Inc. Hamilton, Ontario
RESPONDENT Ed VanderWindt Chief Building Official Hamilton, Ontario
PANEL Allison Orr, Chair Leszek Muniak Michael Gooch
PLACE City of Toronto, Ontario
DATE OF HEARING January 12, 2022
DATE OF RULING January 12, 2022
APPEARANCES David Heska WSP Canada Inc. Hamilton, Ontario The Applicant
Jay Leedale WSP Canada Inc. Hamilton Ontario. Designate for the Applicant
Bob Nuttall Manager of Inspections City of Hamilton, Ontario Designate for the Respondent
Chris Atchison Supervisor of inspections City of Hamilton, Ontario Designate for the Respondent
George Wong Building Engineer City of Hamilton, Ontario Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant applied for a building permit under the Building Code Act, 1992, to renovate and replace the guards at Tim Hortons Field, 64 Melrose Avenue North, Hamilton Ontario.
The subject premise is an existing outdoor stadium complex, classified as a Group A, Division 4 major occupancy. The scope of the work for the building permit involves renovations to replace the guards at the back and sides of the stadium stands in both the east and west grandstands. The work also includes the design of a new structural connection between the guards and the precast concrete stands.
The Respondent issued an “Order to Comply” following a building inspection on August 23, 2021. The Order describes the construction of the new guard system as non-compliant with the issued permit, as the welded wire mesh panel inserts in the new guard, are climbable. The Order requires either the construction to be revised to comply with the approved building permit, or the new guard to be made non-climbable.
The dispute before the Commission centers on whether the size and openings of the installed guards at the back and sides of the East Upper Bowl, provide sufficiency of compliance with Sentence 3.3.1.17.(5) of Division B of the Building Code.
2. Provisions of the Building Code in Dispute
Article 3.3.1.17. Guards
(5) Unless it can be shown that the location and size of openings do not present a hazard, a guard shall be designed so that no member, attachment or opening located between 140 mm and 900 mm above the level protected by the guard will facilitate climbing.
3. Applicant’s Position
The Applicant submitted that the design of the guard does not increase the likelihood of climbing nor does it facilitate climbing. He referenced the dictionary definition of “facilitate” and stated that climbing is not “made easier” by the installed guards in this case.
The Applicant submitted that the 46 mm wide openings do not allow for an adequate toe-hold to promote or facilitate climbing. He reported that adult shoe widths far exceed this 46 mm dimension. Child and youth shoe widths range from 57 mm to 113 mm. Therefore, he maintained, the 46 mm opening does not provide a toe-hold.
The Applicant also submitted that there are natural hazards within the stadium environment that require young children to be supervised to protect them against fall hazards. These include the risk of falling down stairs, over seats, as well as the fall hazard adequately protected by guards. Young children are only expected to be present in this environment if appropriately supervised by an adult.
The Applicant further argued that the fixed stadium seats located immediately beside and in front of the guards also present a hazard. He explained that an unsupervised child might climb onto the seat, armrest or seat back to climb or fall over the guard. This hazard that is acceptable by the Building Code was suggested by the applicant to be more material than the 46 mm X 46 mm openings within the infill panels of the guards. The Applicant maintained that it is reasonable to expect that there is adequate adult supervision to acceptably manage this risk.
The Applicant referenced the National Research Council’s archived public review on proposed changes to the 2010 National Model Construction Codes to state there were no justifications to the National Code articles regarding climbability.
In summary, the Applicant submitted that the narrow 46 mm wide openings of these guards do not facilitate climbing or present a risk to the public.
4. Respondent’s Position
The Designate for the Respondent submitted that the guard placement, as installed, at the back and side of the East Upper Bowl at Tim Hortons Field was identified by the Building Inspector as not being in compliance with the Building Code due to the size of the welded wire mesh infill panels. The welded wire mesh is 3/16 inch (4.8mm) thick and is spaced at 2 inch x 2 inch (50.8 mm x 50.8 mm). This results in 46 mm x 46 mm opening in the guards which the inspector stated are climbable.
The Designate submitted that the original design for the guards that were replaced consisted of perforated infill panels that did not facilitate climbing.
The Designate indicated that the construction of the guards in question had commenced, under building permit, utilising a construction design that was different from what had been approved by the City of Hamilton Building Division, which is a contravention of the Building Code Act under subsection 8(12). He reported that non-compliance had been discovered by a City of Hamilton Building Inspector during inspection. Subsequently, an Order to Comply was issued to the owner, for construction not in accordance with the approved building permit drawings.
The Designate reported that currently, the unpermitted (non-compliant) wire mesh panels have been temporarily protected by solid polyethylene core (DAP) sheet good material and sandwiched on either side of the installed wire mesh panels. This temporary measure remains under Professional Engineer Review, before and after each hosted event, to ensure the protective hoarding remains in place, and secure, to facilitate continuous occupancy of the stadium.
The Designate further submitted that some of the installed guards are located at the back and sides of the East Upper Bowl, with a maximum difference in elevation of approximately 39 m.
In summary, the Designate submitted he is of the opinion that the as constructed guards, consisting of 3/16 inch thick – 2 inch x 2 inch wire mesh panels, do facilitate climbing, presenting a hazard, which does not comply with Sentence 3.3.1.17.(5). Division B of the Building Code.
5. Commission Ruling
It is the decision of the Building Code Commission that the size of the openings in the installed guards do not provide sufficiency of compliance with Sentence 3.3.1.17.(5). of Division B of the Building Code at Tim Hortons Field, 64 Melrose Avenue North, Hamilton, Ontario.
6. Reasons
i) Sentence 3.3.1.17.(5) of the Building Code States:
Unless it can be shown that the location and size of openings do not present a hazard, a guard shall be designed so that no member, attachment or opening located between 140 mm and 900 mm above the level protected by the guard will facilitate climbing.
The Commission heard evidence and testimony that the installed welded wire mesh guards had vertical and horizontal 3/16 inch wires forming square openings that are 46 mm x 46 mm. The Commission also heard that some of the installed guards are located at the back and sides of the East Upper Bowl, with a maximum difference in elevation of approximately 39 m.
Based on the evidence and testimony presented, the Commission was not convinced that the location and size of openings do not present a hazard. The Commission is of the opinion that the size and design of the openings of the installed guards, which have horizontal members, do facilitate climbing.
Dated at the City of Toronto this 12th day in the month of January in the year 2022 for application number B-2021-17.
Allison Orr, Chair Designate
Leszek Muniak
Michael Gooch