Ruling No.: 23-07-1621
Application No.: B-2023-04
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 Articles 9.8.4.7., 9.8.7.2.and 9.9.6.7. and Sentences 9.5.11.1.(1) and 9.8.2.2.(1) of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Mengchen Xu for the resolution of a dispute with William M. Johnston, Chief Building Official, to determine whether the proposal to provide access to a rooftop deck by openable skylight in a three-storey single family dwelling, provides sufficiency of compliance with Articles 9.8.4.7., 9.8.7.2. and 9.9.6.7. and Sentences 9.5.11.1.(1) and 9.8.2.2.(1) of Division B of the Building Code at 14 Prospect Street, Toronto, Ontario.
APPLICANT Mengchen Xu
LHW Engineering
Scarborough, Ontario
RESPONDENT Kamal Gogna
Chief Building Official
City of Toronto
PANEL Matthew Graham, Vice Chair
Christina Kalt
Michael Gooch
PLACE Video Conference
DATE OF HEARING June 13, 2023
DATE OF RULING June 13, 2023
APPEARANCES Mengchen Xu
Designer
Scarborough, Ontario
Applicant
Bill Wang
Engineer
Scarborough, Ontario
Agent for the Applicant
Selva Panchanatham
Manager Plan Review
City of Toronto, Ontario
Designate for the Respondent
Disha Patel
Plans Examiner
City of Toronto, Ontario
Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant has applied for a building permit under the Building Code Act, 1992, to legalize an as-built rooftop deck with access through an openable skylight at the top of a stairway that was previously constructed without a building permit at 14 Prospect Street, Toronto, Ontario. An Order to Comply was subsequently issued by the City of Toronto.
The subject building is a three-storey, Group C residential building with a building area of approximately 50 m2.
Initially, the dispute before the Commission centred on whether the proposed access to the rooftop deck by openable skylight provides sufficiency of compliance with Articles 9.8.4.7., 9.9.6.7. and 9.8.7.2. and Sentences 9.5.11.1.(1) and 9.8.2.2.(1) of Division B of the Building Code. However, during the hearing, the Commission heard the parties agree that Articles 9.8.4.7. and 9.8.7.2. were no longer in dispute.
- Provisions of the Building Code in Dispute
9.5.11.1. Doorway Opening Sizes
(1) Except as provided in Articles 9.5.11.3., 9.9.6.2. and 9.9.6.3., doorway openings within dwelling units shall be designed to accommodate at least the door sizes in Table 9.5.11.1. for swing-type doors or folding doors.
Table 9.5.11.1. Minimum Door Sizes
Forming Part of Sentence 9.5.11.1.(1)
Item
Column 1
At Entrance to:
Column 2
Minimum Width, mm
Column 3
Minimum Height, mm
Dwelling unit (required entrance)
810
1 980
Vestibule or entrance hall
Stairs to a floor level that contains a finished space
810
1 980
All doors in at least one line of passage from the exterior to the basement
Utility rooms
Walk-in closet
610
1 980
Bathroom, water closet room, shower room(1)
610
1 980
Rooms located off hallways that are permitted to be 710 mm wide
610
1 980
Rooms not mentioned above, exterior balconies
760
1 980
Notes to Table 9.5.11.1.:
(1) See Article 9.5.11.3.
9.8.2.2. Height over Stairs
(1) The clear height over stairs shall be measured vertically, over the clear width of the stair, from a straight line tangent to the tread and landing nosings to the lowest point above. (2) Except as provided in Sentence (3) and Article 9.8.4.5A., the clear height over stairs shall not be less than 2 050 mm.
(3) Except as provided in Article 9.8.4.5A., the clear height over stairs serving a house or an individual dwelling unit shall not be less than 1 950 mm.
9.9.6.7. Door Latching, Locking and Opening Mechanisms
(1) Principal entrance doors, exit doors and doors to suites, including exterior doors serving a house or an individual dwelling unit, and other doors in an access to exit shall,
(a) be openable from the inside or in travelling to an exit without requiring keys, special devices or specialized knowledge of the door opening mechanism, or
(b) be controlled by electromagnetic locking mechanisms in accordance with Sentence 3.4.6.16.(4).
(2) Except for doors serving a house or an individual dwelling unit and except for doors to accessory buildings and to garages serving a house or an individual dwelling unit, door release hardware on doors in a means of egress shall be operable with one hand and the door shall be openable with not more than one releasing operation.
(3) Door release hardware on doors in a means of egress shall be installed not more than 1 200 mm above the finished floor.
(4) Except for hotels, a door opening onto a public corridor that provides access to exit from suites shall be designed not to lock automatically when such doors are equipped with an automatic self-closing device.
- Applicant’s Position
The Applicant submitted that the portion of the project in dispute relates to the proposed means for accessing the rooftop deck.
The Applicant further indicated that the proposed access mechanism is an openable skylight with a clear width of 760 mm and clear headroom height of 1960 mm when it is in a complete open position. The proposed openable skylight, which opens with hydraulics and is controlled by a special opening mechanism, functions as the exit for the rooftop deck.
The Applicant explained that the openable skylight has been installed and can not meet the headroom clearance in the closed position. The Applicant submitted they were willing to make adjustments to their design to comply with the Building Code. However, specifics were not submitted to the Respondent.
- Respondent’s Position
The Designate for the Respondent (the “Designate”) stated that a building permit application was submitted on July 27, 2022 to legalize the as-built roof deck and staircase access enclosure. Based on their initial review, deficiency notices were sent to the Applicant on August 16, 2022. The Designate also confirmed that Toronto Building issued an Order to Comply on the property because the construction does not comply with the requirements of Section 9.8. of Division B of the Building Code.
According to the Designate, the Applicant failed to demonstrate compliance with various Sections of the Building Code in their building permit submission, including Sections 9.5., 9.8., 9.10. and 9.26 of Division B of the Building Code. The Designate further submitted that the permit drawings lack the necessary details to demonstrate compliance with Section 9.8. of Division B of the Building Code, including but not limited to dimensions, plans, elevations, stair section details and notes. In addition, according to the Designate, the permit drawings showed conflicting information.
Concerns raised by the Designate at the outset of the hearing included the following:
Missing guard around the stair shaft when the operable skylight is in the open position;
Missing handrail continuity around the stair shaft when the operable skylight is in the open position;
Missing protection measures for children and other family members’ safety while accessing the non-compliant stair with an operable skylight to a finished roof deck as shown, which is a major safety concern;
Insufficient headroom clearance for the stair; and missing protection from the ingress of water and accumulation of snow for the operable skylight.
The Designate submitted that the building permit application is for an addition/ extension to an existing building. Therefore, it is reasonable that the new construction comply with Part 9 of Division B of the Building Code, as there are no construction difficulties that would impede meeting the prescriptive requirements of the Building Code. However, during the hearing and in response to questions, the Designate agreed that Articles 9.8.4.7. and 9.8.7.2. were no longer in dispute.
The Designate further stated during the hearing that there is particular concern that the as-built stairway would continue to provide unrestricted access to the rooftop deck and that it does not meet the requirements of Section 9.8 of Division B of the Building Code. The adjacent sloped portion of stair enclosure near the operable skylight is also not protected to prevent access towards enclosure top and increases risk of tripping, slipping, and or falling into the stairwell. The Designate also noted that there is no control over the use of this noncompliant stairway and that the electronic switch-controlled skylight only increases the risk of unauthorized access to the roof via the non-compliant stairway.
According to the Designate, the proposed skylight in the open and closed positions increases the risk of collision and injury. The hazard is increased by electronically operated hydraulics, which can delay evacuation to a safe place during an emergency. In addition, the openable skylight does not provide the required headroom for stairs towards the proposed rooftop deck area in the closed/non-operable position.
- Commission Ruling
It is the decision of the Building Code Commission that the proposal to provide access to a rooftop deck by openable skylight in a three-storey single family dwelling does not provide sufficiency of compliance with Article 9.9.6.7. and Sentences 9.5.11.1.(1) and 9.8.2.2.(1) of Division B of the Building Code at 14 Prospect Street, Toronto, Ontario.
- Reasons
i) Based on evidence submitted by the Applicant, it is the opinion of the Commission that the openable skylight does not sufficiently comply with Sentence 9.5.11.1.(1) of Division B of the Building Code, as it does not provide the same clear opening as a door swinging on a vertical axis.
ii) The Commission heard that the clear height requirements, as set out in Article 9.8.2.2. of Division B of the Building Code, would be met when the skylight was in the fully open position. However, the Commission did not receive sufficient evidence to confirm that the clear height requirements would be sufficiently met when the openable skylight is in the partially open or closed position. No compensating measures were proposed to prevent access to the stairs when the openable skylight is in the partially open or closed position.
iii) Article 9.9.6.7. of Division B of the Building Code sets out the requirements for door latching, locking and opening mechanisms. The Commission heard that the skylight only opens and closes hydraulically and is not equipped with a manual override or back up power, thereby requiring specialized knowledge of the opening mechanism. In addition, the Commission heard that there is no opening mechanism to manually operate the skylight from the roof deck in the event of an emergency. It is therefore the opinion of the Commission that the openable skylight does not sufficiently comply with Article 9.9.6.7. of Division B of the Building Code.
iv) No alternative solutions were proposed by the Applicant to demonstrate that the proposal would achieve the level of performance required by the acceptable solutions contained within Division B of the Building Code.
Dated at the City of Toronto this 9th day in the month of August in the year 2022 for application number B-2022-03.
Matthew Graham, Vice Chair
Christina Kalt
Michael Gooch