Citation: Zahoruk v. Anastasopoulos 2023 ONBCC 6
Ruling No.: 23-06-1620
Application No.: B-2023-01
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 3.1.17.1.(1) and (2), and Sentence 3.7.4.2.(1) of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Cynthia Zahoruk for the resolution of a dispute with Nick Anastasopoulos Chief Building Official, to determine whether the proposal to construct one universal washroom and one unisex washroom for a new ground floor office of a 17 storey multi-use building, provides sufficiency of compliance with Sentences 3.1.17.1.(1) and (2), and Sentence 3.7.4.2.(1) of Division B of the Building Code, at 2025 Maria Street, Units 1-3, Burlington, Ontario.
APPLICANT Cynthia Zahoruk
Principal Architect, OAA
Cynthia Zahoruk Architect Inc.
Burlington, Ontario
RESPONDENT Nick Anastasopoulos
Chief Building Official
City of Burlington
Burlington, Ontario
PANEL Stephen Wong, Chair
Elektra Vrachas
Alexandra Chow
PLACE via Teams Video Conference
DATE OF HEARING May 31, 2023
DATE OF RULING May 31, 2023
APPEARANCES Cynthia Zahoruk
Principal Architect, OAA
Burlington, Ontario
The Applicant
Nevine Soliman
Cynthia Zahoruk Architect Inc.
Burlington, Ontario
Agent for the Applicant
Glen Good
Building Code Consulting & Training Inc.
Agent for the Applicant
JoAnn Landry
Tenant Representative
Royal LePage
Agent for the Applicant
Nick Anastasopoulos
Chief Building Official
City of Burlington
Burlington, Ontario
The Respondent
Dio Ortiz
Deputy Chief Building Official
City of Burlington
Burlington, Ontario
Designate for the Respondent
Ebtessam Mahrous
Building Architect
Burlington, Ontario
Designate for The Respondent
RULING
1. Particulars of Dispute
The Applicant has received a building permit under the Building Code Act, 1992, and is constructing a new interior fit-out of Units 1 to 3 located on the ground floor of the multi-storey building at 2025 Maria Street, Burlington, Ontario.
The construction in question consists of three individual units consolidated into a single suite for use as a Realtor Brokerage office space (Group D, Business and Personal Services occupancy). The approved building permit is for a suite that has a total area of 312 m2 and consists of a reception area, 18 offices, one universal washroom, two unisex washrooms, a service room, a storage room, a kitchenette, and a copy/print area. The proposed revision to the building permit provides one universal washroom and one unisex washroom in order to use the second unisex washroom as an additional office. The proposed washroom count is based on an occupant load calculation using a design method, where the occupant load is proposed to be limited to 18 occupants maximum, with a sign posted stating the limited occupancy.
The dispute between the two parties centers on whether the proposed washroom count (one universal washroom and one unisex washroom) and occupant load calculation, provides sufficiency of compliance with the requirements of Sentences 3.1.17.1.(1) and (2) and Sentence 3.7.4.2.(1) of Division B of the Building Code.
2. Provisions of the Building Code in Dispute
3.1.17.1. Occupant Load Determination
(1) The occupant load of a floor area or part of a floor area, or of a building or part of a building not having a floor area, shall be based on,
(a) the number of seats in an assembly occupancy having fixed seats,
(b) two persons per sleeping room or sleeping area in a dwelling unit or suite, or
(c) the number of persons,
(i) for which the area is designed, or
(ii) determined from Table 3.1.17.1. for occupancies other than those described in Clauses (a) and (b).
Table 3.1.17.1. Occupant Load
Forming Part of Article 3.1.17.1.
Item
Column 1
Type of Use of Building or Floor Area or Part of Floor Area
Column 2
Area per Person, m2
Assembly uses
space with fixed seats
See Clause (1)(a)
space with non-fixed seats
0.75
stages for theatrical performances
0.75
space with non-fixed seats and tables
0.95
standing space
0.40
stadia and grandstands
0.60
bowling alleys, pool and billiard rooms
9.30
classrooms
1.85
school shops and vocational rooms
9.30
reading or writing rooms or lounges
1.85
dining, alcoholic beverage and cafeteria space
1.10
laboratories in schools
4.60
exhibition halls other than those classified in Group E
2.80
Care, care and treatment or detention uses
B-1 : detention quarters
11.60
B-2 : treatment and sleeping room areas
10.00
B-3 : sleeping room areas
10.00
(See also Article 3.7.1.3.)
Residential uses
dwelling units
See Clause (1)(b)
dormitories
4.60
Business and personal services uses
personal service shops
4.60
offices
9.30
Mercantile uses
basements and first storeys
3.70
second storeys having a principal entrance from a pedestrian
3.70
thoroughfare or a parking area
dining, alcoholic beverage and cafeteria space
1.10
other storeys
5.60
Industrial uses
manufacturing or process rooms
4.60
storage garages
46.00
storage spaces (warehouse)
28.00
aircraft hangars
46.00
Other uses
cleaning and repair of goods
4.60
kitchens
9.30
storage
46.00
public corridors intended for occupancies in addition to pedestrian travel
3.70
(2) If a floor area or part of it has been designed for an occupant load other than that determined from Table 3.1.17.1., a permanent sign indicating that occupant load shall be posted in a conspicuous location.
3.7.4.2. Plumbing Fixtures, General
(1) For the purposes of this Subsection, the occupant load shall be determined in accordance with the provisions in Subsection 3.1.17. except that in a Group D occupancy, the area per person shall be 14 m2.
3. Applicant’s Position
The Agent for the Applicant (the “Agent”) submitted that the space will be used exclusively by the realtors as private offices and will not be open to the public. The Agent described the realty office as having a hybrid work arrangement whereby realtors either work from home or are mobile and are infrequently in the office. The Agent submitted that the expected number of staff (realtors and their employees), as per the tenant’s information, would be 5 to 18 persons maximum in the office space at any one time.
The Agent submitted that the maximum occupant load of 18 staff that will be working in the office is based on the number of persons for which this space was designed for as permitted by Clause 3.1.17.1.(1)(c).
The Agent stated that there are multiple ways to calculate occupant load, using the area method or design method. The Agent stated that since the actual tenant’s needs were known for this suite, the design method was chosen to be used as per Subclause 3.1.17.1.(1)(c )(i). The Agent submitted that the ‘area method’ of 14 m2 per person for a Group D occupancy as per Sentence 3.7.4.2.(1) that is used to determine the occupant load was based on the use of each portion of floor area. The Agent explained that the area used in the occupant load calculation in this case includes only the area that would have occupants on a daily basis, and not the floor area as defined in the Building Code. The Agent argued that the corridors are considered non-occupied areas in that they will not have desks; therefore, corridors with no occupancy are deducted from the total area of the suite when calculating the occupant load.
In using the area method of 14 m2 per person to calculate the occupant load for a Group D occupancy as per Sentence 3.7.4.2.(1) with the adjusted floor area, the Agent stated that this approach resulted in an occupant load of 18 persons that requires two (2) washrooms in accordance with Table 3.7.4.7. The Agent stated that the proposed universal washroom and one unisex washroom satisfies the requirement in Table 3.7.4.7. for two water closets serving a total occupant load of 18 persons. And further, the Agent stated that they propose to post a sign indicating the maximum occupant load as per Sentence 3.1.17.1.(2).
4. Respondent’s Position
The Designate for the Respondent (the “Designate”) submitted that Sentence 3.7.4.2.(1) explicitly excludes the Group D occupancy from having to comply with the requirements of Subsection 3.1.17. for the purpose of determining occupant load by the word “except” in this Sentence. The Designate stated that Sentence 3.7.4.2.(1) clearly mandates that the occupant load in a Group D occupancy be based on 14 m2 area per person for the purpose of determining the number of required plumbing fixtures by the word “shall” in this Sentence.
The Designate clarified that signage for a room and for an entire building is an approach available to designers where Sentence 3.1.7.17.(2) is applicable. However, in this case, in determining plumbing fixtures, design area and posting a sign as permitted in Sentences 3.1.17.1.(1) and 3.1.17.1.(2) are not permitted for a Group D occupancy in accordance with Sentence 3.7.4.2.(1).
The Designate explained that when utilizing the ‘area method’, the floor area of the suite, as defined in the Building Code, shall be used when calculating occupant load. In certain cases, for example, lunchrooms used by the same occupants can be excluded, provided the lunchroom is not available for public use.
In response to questions, the Designate confirmed that an alternative solution permit application has not been made to the City of Burlington by the Applicant, although the applicant referred to the proposal as an ‘alternative solution’. An alternative solution that meets the objective and functional statements associated with the Building Code requirements in this case, were not presented.
5. Commission Ruling
It is the decision of the Building Code Commission that the proposal to construct one universal and one unisex washroom for a new ground floor office of a 17 storey multi-use building, does not provide sufficiency of compliance with Sentences 3.1.17.1.(1) and (2), and Sentence 3.7.4.2.(1) of Division B of the Building Code, at 2025 Maria Street, Units 1-3, Burlington, Ontario.
6. Reasons
i) Sentence 3.7.4.2.(1) of Division B of the Building Code sets out how occupant load shall be calculated for the purpose of determining the required minimum number of plumbing fixtures. Sentence 3.7.4.2.(1) indicates that the occupant load shall be determined in accordance with Subsection 3.1.17. with an exception, the exception specifies that for Group D occupancy, the occupant load shall be based on one person per 14 m2 of area.
It is the Commission’s opinion that Sentence 3.7.4.2.(1) is clear in defining the method to be used in determining the occupant load of Group D occupancy as 14 m2 of area per person for the purpose of applying Subsection 3.7.4. Therefore, Sentences 3.1.17.1.(1) and (2) and the associated Table 3.1.17.1. are not applicable for calculating occupant load to determine the required minimum number of water closets and lavatories in this case, where the subject space is classified as Group D occupancy.
Dated at the City of Toronto this 31st day in the month of May in the year 2023 for application number B-2023-01.
Stephen Wong, Chair
Elektra Vrachas
Alexandra Chow