Citation: Marton v. Manzon 2023 ONBCC 14

Ruling No.: 23-14-1628

Application No.: B-2023-11

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 3.7.4.2.(5), 3.7.4.16.(1) and 3.7.4.16.(2) of Division B of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Alex Marton, for the resolution of a dispute with Paul Manzon, Chief Building Official, to determine whether the proposed washroom for a secondary school providing sightlines from the corridor to the lavatory provides sufficiency of compliance with Sentences 3.7.4.2.(5), 3.7.4.16.(1) and 3.7.4.16.(2) of Division B of the Building Code at 200 Manitou Road West, Manitouwadge, Ontario.

APPLICANT Alex Marton Superintendent on Business Superior Greenstone District School Board Marathon, Ontario

RESPONDENT Paul Manzon Chief Building Official Township of Manitouwadge, Ontario

PANEL Stephen Wong, Chair Christina Kalt James Eduful

PLACE Video Conference

DATE OF HEARING August 24, 2023

DATE OF RULING September 29, 2023

APPEARANCES Ian Hill Architect Critchley Hill Architecture Inc. Township of Manitouwadge, Ontario Agent for the Applicant

Gordon Muir Manager of Plant and Transportation Superior Greenstone District School Board Marathon, Ontario Agent for the Applicant

Matthew Legacy Team Lead, Maintenance and Construction Superior Greenstone District School Board Marathon, Ontario Agent for the Applicant

Paul Manzon Chief Building Official Township of Manitouwadge, Ontario Respondent

Florence MacLean Chief Administrative Officer Township of Manitouwadge, Ontario Designate for the Respondent

Marcel Demars Manager of Bylaw Enforcement and Airport Services Township of Manitouwadge, 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 new universal washroom and a new gender-neutral, inclusive washroom for Manitouwadge High School at 200 Manitou Road West, Manitouwadge, Ontario.

The subject building is an existing high school. It is proposed to renovate the existing male and female washrooms on the main level to accommodate the new washrooms. The building is comprised of noncombustible construction and is equipped with a fire alarm system and automatic sprinkler system.

The construction in dispute involves the design of the entrance and lavatory area for the gender-neutral, inclusive washroom, which provides open sightlines from the corridor to the lavatory area and the washroom enclosures. The dispute before the Commission centers on whether the design proposal provides sufficiency of compliance with Sentences 3.7.4.2.(5), 3.7.4.16.(1) and 3.7.4.16.(2) of Division B of the Building Code.

During the hearing, in response to questions, the parties confirmed that the gang lavatory complies with the number of lavatories required by Sentence 3.7.4.2.(5) of Division B of the Building Code and therefore, this Sentence is no longer in dispute.

In addition, although the hearing for this matter was held on August 24, 2023, the Commission’s ruling with condition was finalized and communicated to the parties on September 29, 2023, following the receipt of further information that the Commission requested following the hearing.

2. Provisions of the Building Code in Dispute

3.7.4.2. Plumbing Fixtures, General

(5) Except as required in this Subsection, at least one lavatory shall be provided in a room containing one or two water closets or urinals, and at least one additional lavatory shall be provided for each additional two water closets or urinals.

3.7.4.16. Privacy

(1) If a room contains not more than 1 water closet, the doorway to the room shall be provided with a full height door that is capable of being locked from the inside.

(2) Except in a room for private use, water closets, urinals, lavatories, showers and bathtubs shall not be visible from the entrance to the room where it contains at least,

(a) two water closets,

(b) one water closet and one urinal,

(c) one shower stall, or

(d) one bathtub.

3. Applicant’s Position

The Applicant’s Agent (the “Agent”) submitted that the Building Code does not specifically address open concept alternative designs for gender-neutral washrooms. However, it does require that all public buildings have washrooms that are accessible to all individuals. According to Agent, the Building Code also sets out specific requirements for the design, location, and accessibility of washrooms.

The Agent further submitted that the Ontario Human Rights Code (OHRC) requires that all individuals have equal access to goods, services, and facilities, including washrooms. The OHRC prohibits discrimination based on a person's gender identity or gender expression. The Agent noted that this means individuals must have access to washrooms that correspond with their gender identity and should not be forced to use a washroom that does not align with their gender identity.

To satisfy the OHRC, and as requested by the Applicant and students at Manitouwadge High School, the Agent submitted that the design intent is to maintain open sightlines to the lavatory area in order to provide for a safe environment. According to the Agent, the water closets are contained in fully private small rooms. The lavatory and mirror are located in a common space accessible to everyone, including those passing by in the corridor. The Agent further submitted that if any one person is permitted to stand by any one person in a gender-neutral environment, then the purpose of sightlines to the lavatory from the corridor are redundant. Furthermore, the Agent argued that the issue of safety in the lavatory area transcends the issue of privacy in order to fulfill the requirements of the OHRC and corresponding legislation.

The Agent submitted that the objective of Sentence 3.7.4.16.(2) of Division B of the Building Code is “to limit an unacceptable level of privacy” as outlined in OH6 of Division A Part 2 of the Building Code. The functional statement of Sentence 3.7.4.16.(2), as outlined in F101 of Division A Part 2 of the Building Code states “to limit unwanted visual exposure”. The Agent contends that, considering the sightlines are not “unwanted,” the location of the lavatory does not pose “an unacceptable level of privacy.”

The Agent further stated that an open concept alternative design, where the water closets are in individual rooms and the lavatory is visible to the corridor, may provide a balance between privacy and accessibility for all users. Alternative designs of gender-neutral washrooms can help to promote a more inclusive and safer environment for individuals who may face discrimination or harassment in gendered washrooms.

4. Respondent’s Position

The Respondent submitted that while the new universal washroom complies with Section 3.8 of Division B of the Building Code, the new gender-neutral, inclusive washroom does not provide sufficiency of compliance with Sentence 3.7.4.16.(2), which pertains to privacy requirements.

According to the Respondent, the proposed gang lavatory in the gender-neutral washroom is visible from the corridor unless a wall is constructed. The Respondent further noted that although the five water closets in the gender-neutral washroom have full height enclosures and full height doors, they are visible from the corridor unless a full height wall separating the washroom from the corridor is constructed.

The Respondent further submitted that the privacy requirement for Sentence 3.7.4.16.(2) would be met if:

a) there is a door to the room, or

b) when opening the door, there is a wall that obstructs the view of the interior of the room, or

c) there is no door but the entrance to the room is a zig zag configuration that directs an individual to go around a wall before being able to view the interior of the room.

The Respondent also referenced the corresponding objectives and functional statements for Sentence 3.7.4.16.(2), F101 and OH6 of Division A Part 2 of the Building Code. F101 states that the intent is “to limit unwanted visual exposure,” and OH6 states that the objective of this Sentence is “to limit the probability that, as a result of the design or construction of a building, a person in the building will be provided with an unacceptable level of privacy.”

5. Commission Ruling

It is the decision of the Building Code Commission that the proposed washroom for a secondary school providing sightlines from the corridor to the lavatory, provides sufficiency of compliance with Sentences 3.7.4.16.(1) and 3.7.4.16.(2) of Division B of the Building Code at 200 Manitou Road West, Manitouwadge, Ontario on condition that:

i) A partial height wall is constructed that separates the lavatory area from the corridor and conceals the gang lavatory from the corridor, as proposed and submitted by the Applicant's Agent in Change Notice CN 004, dated September 11, 2023, which includes Drawings No. CN-04.1 and CN-04.2, both dated September 12, 2023; and

ii) The placement of the mirror does not create additional sightlines to the lavatory area from the corridor.

6. Reasons

i) The Commission heard that the water closets in the gender-neutral, inclusive washroom are separated and enclosed by full height walls and doors, with locking mechanisms on the interior of the doors. It is the Commission’s opinion that the water closet enclosures sufficiently comply with Sentences 3.7.4.16.(1) and 3.7.4.16.(2) of Division B of the Building Code.

ii) It is the Commission’s opinion that sufficiency of compliance with Sentence 3.7.4.16.(2) of Division B of the Building Code for the gang lavatory is achieved when the above noted two conditions in this decision are met.

Dated at the City of Toronto this 29th day in the month of September in the year 2023 for application number B-2023-11.

Stephen Wong, Chair

Christina Kalt

James Eduful