Citation: Thompson v. Lacina 2023 ONBCC 10

Ruling No.: 23-10-1624

Application No.: B-2023-06

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 Sentence 9.10.9.14.(1), and Articles 9.10.21.1., and 9.10.21.2. of Division B of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Donald Thompson for the resolution of a dispute with Paul Lacina, Chief Building Official, Municipality of Chatham-Kent, to determine whether the residential bunkhouse that will house 7 seasonal workers as considered to be a “camp for housing of workers”, provides sufficiency of compliance with Sentence 9.10.9.14.(1), Articles 9.10.21.1. and 9.10.21.2. of Division B of the Building Code when considering the definition of “camp for housing of workers”, “dwelling unit” and “suite”, as defined in Article 1.4.1.2. of Division A of the Building Code at 19370 Gore Road, Blenheim, Ontario.

APPLICANT Donald Thompson Thompson’s Orchards Ltd. Chatham, Ontario

RESPONDENT Paul Lacina Chief Building Official Municipality of Chatham-Kent, Ontario

PANEL Stephen Wong, Chair Michael Gooch Michael Egberts

PLACE via video conference

DATE OF HEARING July 06, 2023

DATE OF RULING July 06, 2023

APPEARANCES

Donald Thompson Thompson’s Orchards Ltd. Blenheim, Ontario The Applicant

Chet Liu Y.C. Liu Engineering Chatham, Ontario Agent for the Applicant

Donny Hunter Y.C. Liu Engineering Chatham, Ontario Agent for the Applicant

Paul Lacina Chief Building Official, Municipality of Chatham-Kent, Ontario The Respondent

Emily Crawford Solicitor Municipality of Chatham Kent, Ontario Designate for the Respondent

Paolo Magliaro Manager of Inspection Municipality of Chatham Kent, Ontario Designate for the Respondent

RULING

1. Particulars of Dispute

The Applicant received a building permit in 2022, under the Building Code Act, 1992, to construct a residential bunkhouse that will house 4 seasonal workers at 19370 Gore Road, Blenheim, Ontario.

On January 16, 2023, the Applicant applied for a revision to the building permit to increase the number of seasonal workers occupying the bunkhouse from 4 to 7, with the same floor plan as previously approved, and no further construction proposed. At the hearing, the Commission heard the building had been constructed and was currently vacant.

The bunkhouse is a single story residential building with a basement. The building has a building area of 137 m² and is of combustible construction. The main floor includes three bedrooms, a bathroom, living room, and kitchen. The basement includes a large storage room and a garage.

At the outset of the hearing the Commission addressed the matter of jurisdiction regarding s.10(1) of the Building Code Act that was raised by the Respondent as a matter in dispute. The chair advised the parties that the Commission has no jurisdiction to hear disputes regarding the Building Code Act, and that its jurisdiction is set out in subsection 24(1) of the Building Code Act and includes disputes regarding the technical requirements of the Building Code regulation. In consideration of the parties’ responses to questions, the following provisions and defined terms that were initially raised by the parties as being in dispute were removed from the hearing notice upon agreement by the parties: s.10(1) of the Building Code Act, Articles 9.5.7.6. and 11.4.3.3. of Division B of the Building Code, and the defined term, “boarding, lodging or rooming house”.

The parties further narrowed the scope of the dispute by agreeing that Sentence 9.10.9.14.(1) was in dispute and not the entire Article 9.10.9.14. In addition, the parties agreed to proceed with the hearing on the basis that the subject building be considered a “camp for housing of workers”, as defined by the Building Code.

Therefore, the amended dispute before the Commission centers on whether the residential bunkhouse, intended to house 7 seasonal workers, provides sufficiency of compliance with Sentence 9.10.9.14.(1) and Articles 9.10.21.1. and 9.10.21.2., of Division B of the Building Code when considering the definition of “camp for housing of workers”, “dwelling unit”, and “suite”, as defined in Article 1.4.1.2. of Division A of the Building Code.

2. Provisions of the Building Code in Dispute

Division B, 9.10.9.14. Separation of Residential Suites

(1) Except as provided in Sentences (2) and (3) and Article 9.10.21.2., suites in residential occupancies shall be separated from adjacent rooms and suites by a fire separation having a fire-resistance rating of not less than 45 min.

Division B, 9.10.21.1. Requirements for Construction Camps

(1) Except as provided in Articles 9.10.21.2. to 9.10.21.9., camps for housing of workers shall conform to Subsections 9.10.1. to 9.10.20.

Division B, 9.10.21.2. Separation of Sleeping Rooms

(1) Except for sleeping rooms within dwelling units, sleeping rooms in a building in a camp for housing of workers shall be separated from each other and from the remainder of the building by a fire separation having not less than a 30 min fire-resistance rating.

Division A, 1.4.1.2. Defined Terms

Camp for housing of workers means a camp in which buildings or other structures or premises are used to accommodate five or more employees.

Dwelling unit means a suite operated as a housekeeping unit, used or intended to be used by one or more persons and usually containing cooking, eating, living, sleeping and sanitary facilities.

Suite means a single room or series of rooms of complementary use, operated under a single tenancy, and includes,

(a) dwelling units,

(b) individual guest rooms in motels, hotels, boarding houses, rooming houses and dormitories, and

(c) individual stores and individual or complementary rooms for business and personal services occupancies.

3. Applicant’s Position

The Applicant submitted that Subsection 9.10.21. “Fire Protection for Construction Camps” applies to a camp for housing of workers intended for construction activities, as the title indicates. The Applicant argued that in this case, the workers are not construction workers but are farm workers, and therefore, the requirements of Subsection 9.10.21. does not apply to the construction of this building.

The Applicant explained that the persons who would occupy the home will arrive and leave together on the same day, will live and work together during the duration of their living in the subject building, and will generally act and operate as a family would. The Applicant submitted with the Application a document titled “Contract for the Employment in Canada of Commonwealth Caribbean Seasonal Agricultural Workers – 2022” which indicated that each of the seven seasonal workers would be required to have a contract for employment with the Applicant, and that provision of lodging by the Applicant to the employee is a condition of the contract.

The Applicant further submitted that the building requires a license annually which involves inspection from three departments including Health, Fire Department, and the Building Department. The Applicant argued that the oversight involved in the licensing process of the building was more controlled than the ongoing operation of a single-family home which is not required to have fire separations and does not limit the number of people who can live in the house.

It is the Applicant’s position that fire separations are not required as the occupants work and live together and could reasonably be considered a single dwelling unit similar to that of a family as defined in the Building Code.

4. Respondent’s Position

The Designate for the Respondent (the “Designate”) asked the Applicant questions to confirm the specifics of the workers living arrangements. The Applicant confirmed that each worker has a separate employment contract, each contract allows the worker to have accommodation in the building, each worker does not pay rent for their accommodation, and that the workers do not have a lease agreement to occupy the building.

The Designate discussed the definition of a suite and noted that a suite, as defined by the Building Code is required to be operated under a single tenancy. The Designate further noted that the Applicant confirmed that each worker would have an independent tenancy agreement by way of individual contracts, and therefore, the subject building would not be considered a suite under the Building Code.

In summary, it is the Respondent’s position that the subject building is a camp for housing of workers with multiple suites and therefore, requires fire separation between the sleeping rooms per Article 9.10.21.2.

5. Commission Ruling

It is the decision of the Building Code Commission that the residential bunkhouse that will house 7 seasonal workers as considered to be a “camp for housing of workers”, does not provide sufficiency of compliance with Sentence 9.10.9.14.(1), Articles 9.10.21.1. and 9.10.21.2. of Division B of the Building Code when considering the definition of “camp for housing of workers”, “dwelling unit”, and “suite”, as defined in Article 1.4.1.2. of Division A of the Building Code at 19370 Gore Road, Blenheim, Ontario.

6. Reasons

i) Both parties agreed at the start of the hearing that the subject building is considered to be a camp for housing of workers, as defined by Article 1.4.1.2. of Division A of the Building Code. Therefore, it is the Commission’s opinion that both Articles 9.10.21.1. and 9.10.21.2. are applicable, and that the requirement for fire separations between sleeping rooms and the reminder of the building, as described in Article 9.10.21.2. is applicable to the subject building.

ii) Evidence was submitted and heard during the hearing that each of the seven seasonal workers would have independent employment contracts with the Applicant, and that provision of lodging by the Applicant to the workers is a condition of those contracts such that there is no single tenancy agreement covering the entire subject building. It is the Commission’s opinion that the subject building is not considered a single dwelling unit or suite as defined by Article 1.4.1.2. of the Building Code, and that the requirements of Sentence 9.10.9.14.(1) are applicable including the exception provided for Article 9.10.21.2.

Dated at the City of Toronto this 6th day in the month of July in the year 2023 for application number B-2023-06.

Stephen Wong, Chair

Michael Gooch

Michael Egberts