Citation: Walters v. Korpel 2024 ONBCC 10
Ruling No.: 24-10-1644
Application No.: S-2024-02
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 8.9.1.2.(1)(b) and Article 8.9.3.2 of Division B of the Building Code.
AND IN THE MATTER OF an application by Kevin and Christopher Walters for the resolution of a dispute with Karl Korpela, Chief Building Official, to determine whether the existing on-site sewage system provides sufficiency of compliance with Sentence 8.9.1.2.(1)(b) and Article 8.9.3.2 of Division B of the Building Code at 16501 Redstone Lake WAO, Ontario.
APPLICANT Kevin and Christopher Walters Toronto, Ontario
RESPONDENT Karl Korpel Chief Building Official Municipality of Dysart et al Haliburton, Ontario
PANEL Judy Beauchamp, Chair Designate Michael Gooch Alexander Campbell
PLACE via video conference
DATE OF HEARING June 27, 2024
DATE OF RULING June 27, 2024
APPEARANCES Kevin Walters Toronto, Ontario Applicant
Marc Kremerer Devry Smith Frank LLP Toronto, Ontario Agent for the Applicant
Karl Korpel Chief Building Official Municipality of Dysart et al Haliburton, Ontario Respondent
Brianna Quinn Building Inspector Municipality of Dysart et al Haliburton, Ontario Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant has received an Order to Comply, under the Building Code Act, 1992, to remedy certain deficiencies at 16501 Redstone Lake WAO, Ontario.
The Municipality of Dysart et al completed a municipal sewage system inspection program which included cottages around Redstone Lake. Property owners were notified of inspections and sent letters via mail indicating the requirements. As a result, the sewage system servicing the dwelling at 16501 Redstone Lake was inspected by a third party (WSP). Following the inspection, WSP issued a report that identified certain issues of concern with the existing sewage system. Subsequently, the municipality issued an Order to Comply for remedial works.
The subject building is a cabin of approximately ft 39.5 m2 (425 square feet) with a low flush toilet, a bathroom sink, and a kitchen sink. Water is supplied by elevated rain barrels. There is no electrical service to the site.
The site is on an isthmus, with the ground consisting typically of shallow pockets of sand overlying bedrock.
Both parties agree that the sewage system is more than 50 years old, consisting of a metal tank and unknown leaching bed. Both parties agree that the septic tank has never been pumped out.
Order number P01 W 02022114 was issued to the Kevin and Christopher Walters indicating that the metal tank is heavily corroded / compromised, and the required action is to submit an application to replace the sewage system prior to February2002.
Both parties agree that the dispute is regarding the proper operation and maintenance of a sewage system in accordance with Sentence 8.9.1.2.(1)(b) and Article 8.9.3.2 of Division B of the Building Code.
2. Provisions of the Building Code in Dispute
Division B, Article 8.9.1.2. General Requirements for Operation and Maintenance
(1) Every sewage system shall be operated and maintained so that,
(a) the sewage system or any part of it shall not emit, discharge or deposit sanitary sewage or effluent onto the surface of the ground,
(b) sanitary sewage or effluent shall not emit, discharge, seep, leak or otherwise escape from the sewage system or any part of it other than from a place or part of the sewage system where the system is designed or intended to discharge the sanitary sewage or effluent, and
Division B, Article 8.9.3.2. General
(1) Every sewage system shall be maintained so that,
(a) the construction of the sewage system remains in accordance with,
(i) the basis on which the construction and use of the sewage system was approved or required under the Act or predecessor legislation, as the case may be, and
(ii) the requirements of the manufacturer of the sewage system, and
(b) all components of the sewage system function in their intended manner.
(2) The land in the vicinity of a sewage system shall be maintained in a condition that will not cause damage to, or impair the functioning of, the sewage system.
3. Applicant’s Position
Th Applicant’s position is that the current septic system meets the requirements of Clause 8.9.1.2(1)(b) and Article 8.9.3.2. of the Building Code and is a legally conforming system pursuant to Sentence 8.9.2.2.(1) of the Building Code.
The Applicant, Kevin Walters, advised the Commission that he is a professional engineer with experience with septic systems.
The Applicant submitted that the property was purchased by his family in 1975 and that there is an existing septic system which services a seasonal cottage of 39.48 m2 (425ft2) located on the property. Water is supplied from elevated rain barrels to a low flow toilet, a washroom sink, and a kitchen sink. As there is no electricity to the property, there is restricted water use.
The Applicant indicated that the soils in the area of the sewage system consist of moss, overlying sand which overlies bedrock. The septic tank itself is a metal tank located partially beneath the building (as the wastewater falls directly from the toilet into the tank). The Applicant indicated that there is a leaching bed in the area of the scrub trees. However, he advised he has not seen it nor does he have any knowledge of the configuration.
The Applicant explained he was present during the inspection conducted by WSP and denied that WSP had found any evidence of failure of the sewage system. He indicated that the inspection of the septic system by the municipality was not thorough and did not reveal any issues. In addition, he objected to the inspection program in general.
The Applicant indicated that the soil surrounding the septic tank is dry and there are no odours emanating from the area of the tank. He also submitted that WSP also found that there was no evidence of sewage breakout/pooling near the system. Based on these observations, he submitted that it was his belief that the septic tank was operating appropriately. The Applicant submitted that the conclusion made by WSP and municipal staff to a require a new septic system was based on speculation given the age of the septic system (pre-1975).
In response to the Commission’s questions, the Applicant admitted he had never known the tank to be pumped out. He reported to have recently flushed the toilet and heard the splash of water into the tank. Based on this he felt the septic tank had liquid in it.
The Applicant indicated that it would be very difficult to replace the sewage system as it would require the clear cutting of trees and the construction of a new road through the property.
In response to questions, the Applicant indicated that there was a leaching bed which may consist of yellow clay pipe. He noted there was a 3-way tee located under a rock which conveys effluent from the tank to the leaching bed. However, he indicated that there had not been any inspection to determine if the water flows out of the septic tank. When asked why he did not expose the septic tank for the inspection, the Applicant replied that he felt the tank might not have any access lids, although he did not know. He also admitted that although there may be liquid in the tank, he does not know if the tank is full or partially full (potentially leaking).
In response to questions, the Applicant also confirmed that he had no knowledge that the system is not functioning as intended.
In summary, the Applicant submitted that it his opinion the existing system is currently functioning adequately, and therefore is in compliance with Clause 8.9.1.2.(1)(b) and Article 8.9.3.2 of Division B of the Building Code.
4. Respondent’s Position
The Respondent’s submitted that it was his position that the sewage system should be replaced based on the inspection completed by WSP, the age of the system, and the lack of any approval for the system.
The Respondent explained that as part of the municipal Sewage System Maintenance Inspection Program, the property at 16501 Redstone Lake WAO, was scheduled for an inspection to take place with WSP Canada. Property owners were notified in advance of these inspections via letter mail and this letter indicated that the septic tank lids must be uncovered/ exposed prior to the inspector's arrival.
On September 6, 2021, the inspector arrived on site and was directed to the septic location. The tank was not made to be accessible as required. The inspector noted a metal access pipe with some signs of corrosion. Following the inspection, a report was prepared and sent to the owner on December 8, 2021. This also included a Remedial Action Letter from the municipality identifying Building Code contraventions and actions required.
The inspection report indicated the following:
A flow test was not completed as the owner opted out of this option.
The septic tank was not uncovered as per their request.
There were tree saplings and shrubs over the potential leaching bed area; and,
There was a metal tank of unknown condition.
In response to the Commission’s questions, the Respondent submitted that the inspection conducted by WSP should have been classified as incomplete.
The Respondent advised that the municipality was able to obtain records for onsite systems dating back to the 1960s. However, an approval for a sewage system located on the subject property could not be located. In fact, the municipality had no records of any construction on this property. The Respondent further indicated that based on MPAC records, the dwelling appears to have been constructed in 1968, and that the sewage system could be as old as 56 years. The Respondent submitted that it was highly improbable that a metal tank of that age would still be in proper working order, even with limited use.
The Respondent indicated that the municipality’s approach for replacing metal tanks typically required the pumping and an inspection of any tank installed prior to 1980.
Given the above-mentioned concerns, an Order for the property was issued on January 4, 2023 to replace the sewage system.
In response to the Applicant’s questions, the Respondent indicated that he considered not only the flow proposed by the Applicant (700 litres per year) but the potential flow to the system in accordance with the Building Code (750 litre per day).
5. Commission Ruling
It is the decision of the Building Code Commission that the existing on-site sewage system does not provide sufficiency of compliance with Sentence 8.9.1.2.(1)(b) and Article 8.9.3.2 of Division B of the Building Code at 16501 Redstone Lake WAO, Ontario.
6. Reasons
i. The Commission heard that letters were issued to owners in advance of conducting inspections, requesting that the lids of the septic tanks be uncovered. The Commission also heard that the owner made no attempt to expose the septic tank lid for inspection.
ii. The Commission heard from both parties that the subject septic tank has never been pumped out, and further, that the Applicant did not know if there were access ports on the top of the tank. The Commission also heard that the septic tank has never been checked for rust corrosion, sludge or scum since the property was purchased in 1975.
iii. Clause 8.9.3.2. (1)(b) of Division B of the Building Code requires that all components of a sewage system function in their intended manner.
Based on the evidence and testimony of both parties, the Commission understands a complete inspection was not performed and the Applicant did not undertake any investigations or testing of the sewage system.
In absence of information regarding the existing condition of the septic tank, scum and sludge levels, flow, and existence of a leaching bed, it is unknown whether all the components of the sewage system function in their intended manner. Therefore, it is the Commission’s position that there is insufficient evidence to demonstrate sufficiency of compliance with Clause 8.9.12.(1)(b) and Article 8.9.3.2. of Division B of the Building Code.
iv. Although the Commission heard that no wet spots have been observed around the septic tank, it is the Commission’s opinion that this is not evidence of a working system. Given the sandy soils and low water use, the Commission is of the opinion that effluent could find it’s way directly to the bedrock without sufficient treatment.
It should be noted that this ruling is specific to the facts of this dispute and property, and the decision of the Commission is not considered to be precedent setting.
Dated at the City of Toronto this 27th day in the month of June in the year 2024 for application number S-2024-02.
Judy Beauchamp, Chair Designate
Alexander Campbell
Michael Gooch