Citation : Kervin v. Gogna 2022 ONBCC 18

Ruling No.: 22-18-1610

Application No.: B-2022-12

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 3.2.4.19.(4) (Clauses 3.2.4.19.(4)(c) and 3.2.4.19.(4)(e)), and 3.2.4.20.(7) and Articles 3.2.4.21., 3.13.5.1. and 3.13.5.2. of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Joanna Kervin, Crosslinx Transit Solutions Constructors for the resolution of a dispute with Kamal Gogna, Acting Chief Building Official, to determine whether the alternative solution proposal to incorporate the use of advanced Passenger Visual Information Displays* (“PVIS”), in conjunction with established standard operating procedures relating to fire safety, at fifteen new Eglinton Crosstown LRT (ECLRT) stations, provides sufficiency of compliance with Sentences 3.2.4.19.(4) (Clauses 3.2.4.19.(4)(c) and 3.2.4.19.(4)(e)), and 3.2.4.20.(7) and Articles 3.2.4.21., 3.13.5.1. and 3.13.5.2., of Division B of the Building Code, when considering the definition of “public use” and the term “corridor” at, 15, 340, 574, 842, 1350, 1580, 1815, 2320, 2660 and 3520 Eglinton Ave W, and 256, 615, 811, 1175 and 2439 Eglinton Ave E, Toronto, Ontario.

APPLICANT Joanna Kervin

Vice President External Approvals and Implementation

Crosslinx Transit Solutions Constructors (CTSC)

Toronto, Ontario

RESPONDENT Kamal Gogna

Acting Chief Building Official

City of Toronto

Toronto, Ontario

PANEL Stephen Wong, Chair

Matthew Graham

Leszek Muniak

PLACE via video conference

DATE OF HEARING October 12, 2022 and October 18, 2022

DATE OF RULING October 18, 2022

APPEARANCES Joanna Kervin, P.Eng.

Vice President External Approvals and Implementation

Crosslinx Transit Solutions Constructors (CTSC)

Toronto, Ontario

The Applicant

Andrew Parley

Lenczer Slaght, LLP

Toronto, Ontario

Legal Counsel

Agent for the Applicant

Drew Black

Lenczer Slaght, LLP

Toronto, Ontario

Legal Counsel for the Applicant

Harold Locke

Consultant

Locke and Locke Inc.

Vancouver, British Columbia

Agent for the Applicant

Chris McCarthy

Design Director

Crosslinx Transit Solutions Design

Toronto, Ontario

Agent for the Applicant

Dave Anderson

Chief Safety Officer

Crosslinx Transit Solutions Constructors

Agent for the Applicant

Andrew Coles

Consultant

SenezCo Fire Science & Engineering

Vancouver, British Columbia

Agent for the Applicant

Paul Dhir

Manager Plan Review

City of Toronto

Toronto, Ontario

Designate for the Respondent

Frank Panacci

Manager Plan Review –Transit Projects

City of Toronto

Toronto, Ontario

Designate for the Respondent

Karthie Bremachandran, P.Eng

Mechanical Building Engineer

City of Toronto

Toronto, Ontario

Designate for the Respondent

Vishal Gogna, P.Eng

Manager Plan Review (Acting)

City of Toronto

Toronto, Ontario

Designate for the Respondent

Bill Stamatopoulos, P.Eng

Director/Deputy Chief Building Official

City of Toronto

Toronto, Ontario

Designate for the Respondent

Rob Patton

District Chief Fire Prevention, Community & Social Services

Toronto Fire Services

City of Toronto

Toronto, Ontario

Designate for the Respondent

Tyler Grassi

Firefighter Fire Prevention, Community & Social Services

Toronto Fire Services

City of Toronto

Toronto, Ontario

Designate for the Respondent

RULING

1. Particulars of Dispute

The Applicant has applied for building permits under the Building Code Act, 1992, to construct fifteen new Eglington Crosstown Light Rail Transit (“ECLRT”) stations located at 15, 340, 574, 842, 1350, 1580, 1815, 2320, 2660 and 3520 Eglinton Ave W, and 256, 615, 811, 1175 and 2439 Eglinton Ave E, Toronto, Ontario.

The buildings in question are rapid transit stations, with ground/concourse and below-grade platform levels. Stations are Group A, Division 2 Assembly occupancy and contain public areas and staff washrooms that are not accessible by the public. The rapid transit stations are equipped with a fire alarm system, automatic sprinkler system and standpipe and hose system.

These are new rapid transit stations that have been in the permit process since 2015. Occupancy of these stations remains outstanding. There are several issued permits in dispute regarding the requirement to install visual signal devices in the ECLRT stations.

An alternative solution was submitted by the Applicant to propose the use of advanced Passenger Visual Information Displays* (“PVIS”) as a substitute for visual signal devices. The City of Toronto has denied the alternative solution indicating that a listed ULC device exists for this type of application.

The dispute before the Commission centers on whether the alternative solution proposal to incorporate the use of PVIS in conjunction with established standard operating procedures relating to fire safety, at fifteen new Eglinton Crosstown LRT (ECLRT) stations, provides sufficiency of compliance with Clause 3.2.4.19.(4)(c) and Article 3.13.5.1. of Division B of the Building Code, when considering the definition of “public use” and the term “corridor”.

Sentences 3.2.4.19.(4) (Clause 3.2.4.19.(4)(e)), and 3.2.4.20.(7) and Articles 3.2.4.21., and 3.13.5.2. of Division B of the Building Code were initially raised by the parties as also being in dispute. At the hearing the parties agreed that these matters were resolved and are no longer in dispute.

2. Provisions of the Building Code in Dispute

3.2.4.19. Alert and Alarm Signals

(4) Except as permitted by Sentence (6), visual signal devices shall be installed in addition to audible signal devices,

(c) in a corridor used by the public and in a floor area or part of a floor area where the

public may congregate in a Group A occupancy,

3.13.5.1. Fire Alarm System

(1) Except as provided in this Subsection, a fire alarm system conforming to Subsection 3.2.4. shall be installed in a rapid transit station.

3. Applicant’s Position

Legal Counsel for the Applicant (“Agent”) coordinated presentations from various technical experts in support of the proposed alternative solution and use of PVIS.

The Agent submitted that the proposed alternative solution demonstrates that the PVIS system meets the requirement of visual signal devices as part of the fire alarm system and overall life safety features for the ECLRT stations.

The Agent explained that when a proposed design differs from the acceptable solutions of the Building Code, compliance is permitted by the Building Code, Division A, Clause 1.2.1.1.(1)(b), to be achieved by using alternative solutions that will achieve the same level of performance as required by the applicable acceptable solutions.

The Agent advised that the scope of the subject alternative solution was limited to Article 3.13.5.1. and Clause 3.2.4.19.(4)(c) of Division B of the Building Code. The Agent explained that the rapid transit stations are classified as Group A, Division 2 major occupancies, as defined in the Building Code and regulated by Division B, Section 3.13. Specifically, Sentence 3.13.5.1.(1) requires a fire alarm and detection system (“FADS”) to be installed in conformance with Subsection 3.2.4. of the Building Code and Sentence 3.2.4.19.(4) requires the installation of visual signal devices connected to the FADS.

The Agent advised that the definition of a visual signal device in ULC S524 “Installation of Fire Alarm Systems” is a “device that uses light to notify occupants of an emergency” and that strobe lights are the visual signal devices included in ULC S524. The Agent explained that the proposed design of the ECLRT stations uses a holistic approach for occupant notification in public spaces, which includes other types of visual signal devices, in lieu of strobe lights. The Agent advised that, through the course of construction, several alternative solutions had been submitted, and that the Applicant is aware of the design consideration to include the proposed PVIS.

The Agent indicated that the intent of Sentence 3.2.4.19.(4) of Division B of the Building Code requiring visual signal devices in addition to audible signal devices is to limit the probability that persons with hearing impairment will not be promptly notified of a fire situation, which could lead to delays in evacuation or moving to a safe place. The intent is also to limit the probability that persons will not hear or be able to distinguish fire alarm signals from ambient noises and will not be promptly notified of a fire situation, which could lead to delays in evacuation or moving to a safe place, resulting in potential harm to persons. In addition, the Agent submitted that audible signal devices are not required for the fire alarm system, as permitted by Sentence 3.13.5.2.(2) of Division B of the Building Code.

The Agent provided a historical account of the requirements for visual signal devices in Sentence 3.2.4.19.(4) of Division B of the Building Code which were first required in the 2006 Edition of the Building Code.

The Agent for the Applicant advised the Commission that a typical ECLRT station is one of several buildings linked together by a comprehensive network of communication systems terminating at a central Operations Control Center (“OCC”). The Agent advised that passenger safety is not achieved simply by conforming only to the requirements of the Building Code but rather by providing a comprehensive and integrated approach related to train operations as well as, safety within the station. Standard NFPA 130 “Fixed Guideway Transit and Passenger Rail Systems”, on the other hand, describes more completely how fire and life safety of passengers, employees and emergency services in LRT stations are achieved holistically. The Agent confirmed that the portions of the stations, which are not open to the public, are not equipped with PVIS but will be equipped with ULC listed strobe lights.

The Agent submitted that PVIS messaging can be coordinated through Public Information System (“PIS”) software to align with voice messages for emergency conditions. At the alarm stage, the PIS will cause platform PVIS devices to flash three times at approximately 1 Hz. The flash is intended to be created by simultaneous illumination of all LEDs in a device, or of a large solid block of LEDs. LEDs for emergency messages will use a colour that distinguishes between fire alarm messages and normal service messages. After three flashes, devices will display the emergency message, “FIRE ALARM Evacuate Station”. The message will be displayed over two lines and will scroll up from the bottom and remain static for 10 seconds. The cycle will then repeat until the emergency condition is cancelled and systems are reset. The Agent advised that PVIS messaging operations and sequences described in the alterative solution would be included as part of the Fire Safety Plan for the stations.

The Agent testified that passengers of the Toronto Transit Commission (TTC) subway system are familiar with this type of messaging. Messaging on the PVIS boards can be changed for improved passenger safety. The Agent contended that strobe lights are universal devices and may not indicate only that there is a fire emergency. For example, airport strobe lights are used to alert authorities of breaches in secure areas not related to the fire alarm system. In addition, message boards can provide graphics. The Agent pointed to Exhibit 1C, Letter from the TTCdated May 30, 2022, wherein the TTC provided confirmation that, in their current emergency operations, they do not use strobe lights anywhere in their stations. Further, in this same correspondence, the TTC expressed that PVIS is the preferred method of communication with passengers. The Agent argued that the use of PVIS in the ECLRT is consistent with screens in all other transit stations which minimizes confusion of passengers and meets passenger expectations. The Agent also expressed concern regarding inconsistent messaging for passengers located at interchange stations where the existing older area of stations would be using message screens to alert passengers and the new sections of the stations would use strobe lights, which could cause confusion to passengers in an emergency situation.

In response to concerns raised by the Respondent that PVIS is not a listed device and therefore, not monitored, the Agent advised that Public Address (“PA”) systems are also not listed devices but are still required by the Building Code. The Agent explained that the standard NFPA 130-2023 “Fixed Guideway Transit and Passenger Rail Systems” is a National Fire Protection Association standard covering life safety for fire and fire protection requirements in fixed guideway transit and passenger rail systems, including, but not limited to, stations, trainways, emergency ventilation systems, vehicles, emergency procedures, communications, and control systems. The Agent further explained that NFPA 130 is broadly used as a design standard by both industry and various jurisdictions in the United States and that in its Appendix, it accepts the use and installation of unlisted devices.

The Agent submitted that Appendix A 4.1.2. of NFPA 130 states that rail-based transit systems commonly use a Supervisory Control and Data Acquisition (“SCADA”) system. The SCADA system is a component supervisory system that monitors all transit control devices. The Agent further explained that the component supervision by a SCADA system will not interfere with the fire alarm system’s supervision of alarm devices and the transfer of supervisory messages. The SCADA system is independent of the fire alarm system supervisory functions.

The Agent indicated that the operation of the PVIS is constantly subject to a computerized Reliability, Availability and Maintenance System (“RAMS”) analysis. RAMS represents a stress test for the device to an established level of performance. The Agent stated that RAMS tests are used for monitoring the operation of air traffic control equipment and are extremely reliable. The Agent submitted that the PVIS is subject to RAMS analysis which constantly monitors the SCADA system and its components and devices as referenced in NFPA 130. The purpose of the RAMS is to constantly report on the reliability of the PVIS.

Upon questioning, the Commission heard the TTC had no objections to the use of PVIS. The role of station attendants is to provide guidance to the public in the event of an emergency. Regarding language, the Agent advised there are approximately 190 different languages in Toronto but would provide English and French as the standard languages for messaging. In response to questions regarding approval of new devices, the Agent acknowledged and advised that the PVIS is not an off-the-shelf system. Rather, it is an engineered system approach for the use of PVIS in conjunction with TTC’s standard operating procedures and constant system monitoring. The Agent added that the constant RAMS analysis of the PVIS operational performance is a reliable and a holistic approach to station fire protection.

In response to questions, the Agent advised that, in the event of a power outage, all stations are equipped with a double feed and battery storage back-up. The Agent advised that although there were concerns expressed by Toronto Fire Services (TFS) regarding NFPA 72 National Fire Alarm and Signalling Code, the alternative solution takes a systems approach and is enforceable through the fire safety plan. Although there is no direct interface with the fire alarm system, the PVIS system is constantly monitored and is separate from the PA system.

In summary, the Agent submitted that visual signal devices are required for rapid transit stations under the Building Code. The Agent maintained that the alternative solution proposal meets the Building Codes objectives and functional statements that are attributed to Clause 3.2.4.19.(4)(c) of Division B for the following reasons:

• The PVIS integrates with all other systems and is considered industry best practice

• The TTC is the single operator of all the subject stations and supports the use of the PVIS

• The PVIS has been demonstrated to be superior to strobe lights in other applications for those with hearing impairment

• The PVIS will utilize the “Running Man” symbol as exit signage

• The Building Code and ULC are not able to keep up with technical advancements

• The Fire Safety Plan will cover all pertinent issues associated with the PVIS system

• RAMS has demonstrated the PVIS system is highly reliable

• Standard NFPA 130-2022 (A.4.1.2.) does not require all fire alarm equipment to be ULC listed.

• Strobe lights are less desirable and PVIS is superior.

4. Respondent’s Position

The Designate for the Respondent (“Designate”) explained that a rapid transit station is exempt from requirements for audible signal devices, but not visual signal devices. Clause 3.2.4.19.(4)(e) of Division B of the Building Code requires visual signal devices.

Section 3.13. of Division B of the Building Code does not waive the required installation of visual signal devices in a rapid transit station. The Designate maintained that visual signal devices are required to be installed in accordance with Article 3.2.4.19. of Division B of the Building Code.

Further the Designate testified that Clauses 3.2.4.19. (4)(b) and (c) of Division B of the Building Code require that visual signal devices to be installed in a public corridor serving a Group A, B, C, D or E occupancy, and in a corridor used by the public and in a floor area or part of a floor area where the public may congregate in a Group A occupancy. Inspection staff have confirmed that no visual signal devices forming part of the fire alarm system have been installed in these locations as required by the Building Code.

In response to the TTC's May 30, 2022, letter explaining their requirements concerning fire alarm systems, the Designate advised that the TTC’s procedural requirements do not supersede the legislated requirements of the Building Code.

The Designate referenced Article 3.2.4.5. of Division B of the Building Code which addresses the installation and verification of fire alarm systems. The Designate explained that the Building Code requires fire alarm systems, including those with voice communication capability, to be installed in conformance with CAN/ULC-S524, “Installation of Fire Alarm Systems”. Also, the Building Code requires a fire alarm system to be verified in conformance with CAN/ULC-S537, “Verification of Fire Alarm Systems”, to ensure satisfactory operation. The intent is to limit the probability that the fire alarm system will not perform as intended in a fire situation, which could lead to persons not being promptly notified of a fire situation.

The Designate testified that initially they were not able to approve or refuse the alternative solution proposal to provide notification by way of PVIS instead of standard fire alarm strobe lights as per CAN-ULC-S524. At that time, the City of Toronto advised the Applicant that further information and documentation was required for review, including input from Toronto Fire Services (“TFS”) in regard to the proposed PVIS.

As per the email correspondence dated September 27, 2022, the Designate, in consultation with TFS, concluded that the proposed PVIS cannot be utilized as fire alarm visual signal devices. Furthermore, the Designate stated that the PVIS is not designed or installed in accordance with fire alarm standards listed in the Building Code and the PVIS cannot be considered as part of the fire alarm system. TFS submitted that the Fire Code maintenance provisions cannot be enforced and applied to the PVIS system that is connected to the fire alarm system.

The Designate explained that the PVIS does not meet the Building Code in terms of maintenance and testing. Other systems exist that are listed such as ULC listed strobe lights. These devices can be tested and monitored by the Fire Alarm System.

TFS, on behalf of the Respondent, also testified that only listed devices were permitted. TFS are not able to test and confirm the operation of non-listed devices. TFS advised that the new ECLTR stations are considered new buildings under the Building Code, and therefore, require strobe lights.

In response to questions from the Agent, the Designate submitted that if strobe lights were not a listed device, then the use of PVIS would be acceptable. Also, the Designate submitted that strobe lights are not a defined term in the Building Code. The Designate indicated that strobe lights were not indicated in the building permit submission drawings and acknowledged that not all aspects of construction can be shown on the drawings.

In summary, the Designate submitted that the PVIS is not a ULC listed component of the fire alarm system and therefore is not permitted. Upon further questioning, the Designate advised they do not object to most of the information submitted in support of the Applicant’s alternative solution and acknowledged that the alternative solution proposal meets the objectives and functional statement attributed to Clause 3.2.4.19.(4)(c) of Division B of the Building Code.

5. Commission Ruling

It is the decision of the Building Code Commission that the alternative solution proposal to incorporate the use of advanced Passenger Visual Information Displays* (“PVIS”), in conjunction with established standard operating procedures relating to fire safety, at fifteen new Eglinton Crosstown LRT (ECLRT) Stations, provides sufficiency of compliance with Clause 3.2.4.19.(4)(c) and Article 3.13.5.1. of Division B of the Building Code, when considering the definition of “public use” and the term “corridor” at, 15, 340, 574, 842, 1350, 1580, 1815, 2320, 2660 and 3520 Eglinton Ave W, and 256, 615, 811, 1175 and 2439 Eglinton Ave E, Toronto, Ontario.

6. Reasons

i) The Commission heard both parties agreed that a fire alarm system conforming to Subsection 3.2.4. of Division B of the Building Code is required to be installed in all 15 new rapid transit stations in compliance with Sentence 3.13.5.1.(1), and that, for the fire alarm system, visual signal devices are required to be installed in a corridor used by the public and in a floor area or part of a floor area where the public may congregate in a Group A occupancy in compliance with Clause 3.2.4.19.(4)(c). The parties also agreed that audible signal devices are not required for the fire alarm system, as permitted by Sentence 3.13.5.2.(2).

Subsection 3.2.4. of the Building Code requires fire alarm systems, including those with voice communication capability, to be installed in conformance with CAN/ULC-S524, “Installation of Fire Alarm Systems”. CAN/ULC-S524 defines a visual signal device as, “a device which utilizes light to notify occupants of a building to an emergency situation in a direct or indirect manner”. The dispute centres on whether the proposed Passenger Visual Information Display (“PVIS”) meets the requirements of CAN/ULC-S524 for use as a visual signal device. The Commission notes that “visual signal device” is not a defined term in the Building Code and that the proposed PVIS is currently not ULC listed.

The Commission received evidence and heard testimony from a third-party rapid transit expert in respect to the proposed alternative solution. The expert witness explained how the PVIS performs as one component of the fire alarm system which is part of an overall comprehensive and integrated fire and life safety system, including fire alarm and detection, public address, floor area monitoring, equipment operation monitoring, and other supplementary systems, together with standard emergency response procedures and plans, in order to provide visual alerts and messages/directions to occupants in an emergency. Therefore, based on the evidence and testimony presented, the Commission is satisfied that the objectives and functional statement have been achieved and is of the opinion that the proposed alternative solution to use PVIS as a visual signal device provides sufficiency of compliance with Clause 3.2.4.19.(4)(c) and Article 3.13.5.1. of Division B of the Building Code.

ii) It is the Commission’s opinion that the proposed Passenger Visual Information Display (“PVIS”), which uses light similar to a strobe light to alert occupants in an emergency, is acceptable for use as a visual signal device. The Commission notes that additional function is provided by the ability of PVIS to provide specific messages to occupants in an emergency, and, in conjunction with established transit standard operating procedures relating to fire and life safety, occupants will be guided to exit the platform and station safely.

iii) The Commission heard that even though the PVIS is not a ULC listed device, NFPA 130, 2023 “Fixed Guideway Transit and Passenger Rail Systems” in its Appendix, accepts the use and installation of unlisted devices. The Commission notes that NFPA 130, 2023 is currently published.

iv) In response to the Commission’s questions, the Designate for the Respondent acknowledged that the alternative solution proposed by the Applicant satisfies the objectives and functional statement attributed to Clause 3.2.4.19.(4)(c). There are no objectives or functional statement associated with Sentence 3.13.5.1.(1) of Division B of the Building Code.

*Note: The Commission uses the term “Passenger Visual Information Displays (“PVIS”)” to be consistent with the term used in the Application submitted by the Applicant, even though other evidence submitted used similar terms including Passenger Visual Information System and Public Visual Information System.

Dated at the City of Toronto this 18th day in the month of October in the year 2022 for application number B-2022-12.

Stephen Wong, Chair

Matthew Graham

Leszek Muniak