Citation: Cunningham v. Dillabough 2024 ONBCC 13
Ruling No.: 24-13-1647
Application No.: B-2024-06
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 Articles 4.1.1.3., 4.1.1.4., 4.1.3.2., 4.2.3.7., 4.2.4.1., and 4.3.4.2. of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Mark Cunningham, for the resolution of a dispute with Devin Dillabough, Chief Building Official of the Town of Georgina, to determine whether the proposal to use a Polycore wall design, with a cold formed steel stud wall wrapped with EPS insulation, in the construction of a below grade foundation for a new two storey semi-detached house, provides sufficiency of compliance with Articles 4.1.1.3., 4.1.1.4., 4.1.3.2., 4.2.3.7., 4.2.4.1. and 4.3.4.2. of the Building Code at #9 and #11 Annamaria Drive, Keswick, Ontario.
APPLICANT Mark Cunningham
SI Construction Systems Ltd.
Edmonton, Alberta
RESPONDENT Devin Dillabough
Chief Building Official
Town of Georgina
Keswick, Ontario
PANEL Stephen Wong, Chair
Michael Egberts
Leszek Muniak
PLACE via video conference
DATE OF HEARING August 20, 2024
DATE OF RULING August 20, 2024
APPEARANCES Mark Cunningham
SI Construction Systems Ltd.
Edmonton, Alberta
The Applicant
Tony de la Concha
Green Point Engineering
Kingston, Ontario
Agent for the Applicant
Lance White
White and White Engineers
Edmonton, Alberta
Agent for the Applicant
Devin Dillabough
Chief Building Official
Town of Georgina
Keswick, Ontario
The Respondent
Sydnee Campbell
Plans Examiner
Town of Georgina
Keswick, Ontario
Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant applied for a building permit under the Building Code Act, 1992, to construct a new two storey semi-detached house at #9 and #11 Annamaria Drive, Keswick, Ontario.
The subject building is a new Group C, two storey, semi-detached residential dwelling having a building area of 638 m2 as submitted by the Applicant.
The construction in dispute is regarding the foundation walls for the home, which are proposed to be constructed with a prefabricated system called Polycore Foundation system. The Polycore Foundation system is comprised of a combination of expanded polystyrene (EPS), cold-formed steel studs, and pressure treated plywood. These materials are intended to work together as a system to provide the function of the below-grade foundation wall.
The dispute centers around whether the use of the Polycore Foundation system as a below-grade foundation wall provides sufficiency of compliance with Articles 4.1.1.3., 4.1.1.4., 4.1.3.2., 4.2.3.7., 4.2.4.1. and 4.3.4.2. of the Building Code.
At the outset of the hearing, the Commission raised the issue of whether it had the jurisdiction to hear the matter. Documentation submitted by the parties indicated that the entire permit process was not completed prior to the Commission hearing, including the submission of key technical information by the Applicant at the request of the Respondent. This resulted in an incomplete permit application review prior to the start of the hearing. The Commission heard from both parties regarding their reasons for why they believed the Commission would have jurisdiction to hear the matter. The Commission sought legal advice from the Ministry of Municipal Affairs and Housing’s Legal Counsel. The Commission disclosed the nature of the legal advice it received and advised both parties it did not have the jurisdiction to hear the dispute related to sufficiency of compliance with Articles 4.1.1.3., 4.1.1.4., 4.1.3.2., 4.2.3.7., 4.2.4.1. and 4.3.4.2. of the Building Code for the reasons outlined in this ruling.
- Provisions of the Building Code in Dispute
4.1.1.3. Design Requirements
(1) Buildings and their structural members and connections including formwork and falsework shall be designed to have sufficient structural capacity and structural integrity to safely and effectively resist all loads, effects of loads and influences that may reasonably be expected, having regard to the expected service life of buildings, and shall in any case satisfy the requirements of this Section. (See Appendix A.)
(2) Buildings and their structural members shall be designed for serviceability, in accordance with Articles 4.1.3.4. to 4.1.3.6. (See Appendix A.)
4.1.1.4. Design Basis
(1) Except as provided in Sentence (2), buildings and their structural members shall be designed in conformance with the procedures and practices provided in this Part.
(2) Provided the design is carried out by a person especially qualified in the specific methods applied and provided the design demonstrates a level of safety and performance in accordance with the requirements of this Part, buildings and their structural components falling within the scope of this Part that are not amenable to analysis using a generally established theory may be designed by,
(a) evaluation of a full-scale structure or a prototype by a loading test, or
(b) studies of model analogues.
(See Appendix A.)
4.1.3.2. Strength and Stability
(1) A building and its structural components shall be designed to have sufficient strength and stability so that the factored resistance, ΦR, is greater than or equal to the effect of factored loads, which shall be determined in accordance with Sentence (2).
(2) Except as provided in Sentence (3), the effect of factored loads for a building or structural component shall be determined in accordance with the requirements of this Article and the following load combination cases, the applicable combination being that which results in the most critical effect:
(a) for load cases without crane loads, the load combinations listed in Table 4.1.3.2.A., and
(b) for load cases with crane loads, the load combinations listed in Table 4.1.3.2.B.
(See Appendix A.)
(3) Other load combinations that must also be considered are the principal loads acting with the companion loads taken as zero.
(4) Where the effects due to lateral earth pressure, H, restraint effects from pre-stress, P, and imposed deformation, T, affect the structural safety, they shall be taken into account in the calculations, with load factors of 1.5, 1.0 and 1.25 assigned to H, P and T respectively. (See Appendix A.)
(5) Except as provided in Sentence 4.1.8.16.(2), the counteracting factored dead load, 0.9D in load combination cases 2, 3 and 4 and 1.0D in load combination case 5 of Table 4.1.3.2.A. and 0.9D in load combination cases 1 to 5 and 1.0D in load combination case 6 of Table 4.1.3.2.B., shall be used when the dead load acts to resist overturning, uplift, sliding, failure due to stress reversal, and to determine anchorage requirements and the factored resistance of members. (See Appendix A.)
(6) The principal-load factor 1.5 for live loads, L in Table 4.1.3.2.A. and Lxc in Table 4.1.3.2.B. may be reduced to 1.25 for liquids in tanks.
(7) The companion-load factor for live loads, L in Table 4.1.3.2.A. and Lxc in Table 4.1.3.2.B. shall be increased by 0.5 for storage areas and for equipment areas and service rooms referred to in Table 4.1.5.3.
(8) Except as provided in Sentence (9), the load factor 1.25 for dead load, D, for soil, superimposed earth, plants and trees given in Tables 4.1.3.2.A. and 4.1.3.2.B. shall be increased to 1.5, except that when the soil depth exceeds 1.2 m, the factor may be reduced to 1 + 0.6/hs but not less than 1.25, where hs is the depth of soil in metres supported by the structure.
(9) A principal-load factor of 1.5 shall be applied to the weight of saturated soil used in load combination case 1 of Table 4.1.3.2.A.
(10) Earthquake load, E, in load combination case 5 of Table 4.1.3.2.A. and case 6 of Table 4.1.3.2.B. includes horizontal earth pressure due to earthquake determined in accordance with Sentence 4.1.8.16.(7).
(11) Provision shall be made to ensure adequate stability of the structure as a whole and adequate lateral, torsional and local stability of all structural parts.
(12) Sway effects produced by vertical loads acting on the structure in its displaced configuration shall be taken into account in the design of buildings and their structural members.
Table 4.1.3.2.A.
Load Combinations Without Crane Loads for Ultimate Limit States
Forming Part of Sentences 4.1.3.2.(2) and (5) to (10)
Case
Load Combination(1)
Principal Loads
Companion Loads
1
1.4D(2)
2
(1.25D(3) or 0.9D(4)) + 1.5L(5)
1.0S(6) or 0.4W
3
(1.25D(3) or 0.9D(4)) + 1.5S
1.0.L(6)(7) or 0.4W
4
(1.25D(3) or 0.9D(4)) + 1.4W
0.5L(7) or 0.5S
5
1.0D(4) + 1.0E(8)
0.5L(6)(7) + 0.25S(6)
Column 1
2
3
Notes to Table 4.1.3.2.A.:
(1) See Sentences 4.1.3.2.(2), (3) and (4).
(2) See Sentence 4.1.3.2.(9).
(3) See Sentence 4.1.3.2.(8).
(4) See Sentence 4.1.3.2.(5).
(5) See Sentence 4.1.3.2.(6).
(6) See Article 4.1.5.5.
(7) See Sentence 4.1.3.2.(7).
(8) See Sentence 4.1.3.2.(10).
Table 4.1.3.2.B. Load
Combinations With Crane Loads for Ultimate Limit States
Forming Part of Sentences 4.1.3.2.(2), (5) to (8) and (10)
Case
Load Combination(1)
Principal Loads
Companion Loads
1
(1.25D(2) or 0.9D(3)) + (1.5C + 1.0Lxc)
1.0S(4) or 0.4W
2
(1.25D(2) or 0.9D(3)) + (1.0C + 1.5Lxc(5))
1.0S(4) or 0.4W
3
(1.25D(2) or 0.9D(3)) + 1.5S
1.0C + 1.0Lxc(4)(6)
4
(1.25D(2) or 0.9D(3)) + 1.4W
1.0C(7) + 0.5Lxc(4)(6)
5
(1.25D(2) or 0.9D(3)) + C7
6
1.0D(3) + 1.0E(8)
1.0Cd + 0.5Lxc(4)(6) + 0.25S(4)
Column 1
2
3
Notes to Table 4.1.3.2.B.:
(1) See Sentences 4.1.3.2.(2) to (4).
(2) See Sentence 4.1.3.2.(8).
(3) See Sentence 4.1.3.2.(5).
(4) See Article 4.1.5.5.
(5) See Sentence 4.1.3.2.(6).
(6) See Sentence 4.1.3.2.(7).
(7) Side thrust due to cranes need not be combined with full wind load.
(8) See Sentence 4.1.3.2.(10).
4.2.3.7. Steel
(1) Steel used in foundations or in support of soil or rock shall conform with the appropriate requirements of Subsections 4.3.3. or 4.3.4., unless otherwise specified in this Section.
4.2.3.10. Corrosion of Steel
(1) Where conditions are corrosive to steel, adequate protection of exposed steel shall be provided
4.2.4.1. Design Basis
(1) The design of foundations, excavations and soil- and rock-retaining structures shall be based on a subsurface investigation carried out by a person competent in this field of work, and on any of the following:
(a) application of generally accepted geotechnical and civil engineering principles by a person especially qualified in this field of work as provided in this Section and other Sections of this Part,
(b) established local practice where such practice includes successful experience both with soils and rocks of similar type and condition and with a foundation or excavation of similar type, construction method, size and depth, or
(c) in situ testing of foundation units such as the load testing of piles, anchors or footings carried out by a person competent in this field of work. (See Appendix A.)
(2) The foundations of a building shall be capable of resisting all the loads stipulated in Section 4.1., in accordance with limit states design in Subsection 4.1.3.
(3) For the purpose of the application of the load combinations given in Table 4.1.3.2.A., the geotechnical components of loads and the factored geotechnical resistances at ULS shall be determined by a suitably qualified and experienced person. (See Appendix A.)
(4) Geotechnical components of service loads and geotechnical reactions for SLS shall be determined by a suitably qualified and experienced person.
(5) The foundation of a building shall be designed to satisfy SLS requirements within the limits that the building is designed to accommodate, including total settlement and differential settlement, heave, lateral movement, tilt or rotation. (See Appendix A.)
(6) Communication, interaction and coordination between the designer and the person responsible for the geotechnical aspects of the project shall take place to a degree commensurate with the complexity and requirements of the project.
4.3.4.2. Design Basis for Cold-Formed Steel
(1) Buildings and their structural members made of cold-formed steel shall conform to CSA S136, “North American Specification for the Design of Cold-Formed Steel Structural Members”. (See Appendix A.)
2. Applicant’s Position
The Applicant submitted that the foundation system known as Polycore Foundation system, is a prefabricated system that is fabricated in a shop and shipped to the subject building location in panels of between one-foot and four-foot widths. The Applicant further submitted that each design is unique and subject to the attributes, loads, and conditions that are specific to each building location and should not be considered a repeatable system.
The Applicant submitted that the local building officials did not request design calculations for the Polycore foundation walls and therefore the Applicant did not submit them. The Applicant advised that calculations for the foundation system, which would demonstrate how Polycore Foundation system walls meet the technical requirements of the Building Code, could be provided.
The Applicant submitted that the technical Building Code articles noted in the hearing notice were provided by the Chief Building Official in response to the application for hearing to the Building Code Commission. The Applicant further submitted that they would have responded to each of the technical requirements, had the technical deficiencies been provided to them through the building permit application process.
3. Respondent’s Position
The Respondent advised that the information submitted for the building permit application described Polycore Foundation system. The Respondent further submitted that he would expect a proposed construction material or system that is not referenced in the Building Code to be tested or listed as a construction product.
However, the Respondent explained that documentation such as a Canadian Construction Materials Centre (CCMC) evaluation report, Building Materials Evaluation Commission (BMEC) authorization, Minister's Ruling, or testing data for the Polycore Foundation system had not been provided as part of the building permit application. The Respondent added that an Alternative Solution permit application for the proposed foundation wall system was not submitted.
In response to the application to the Building Code Commission, the Respondent explained that he reviewed the Polycore Foundation system as a series of individual components and submitted the technical requirements of the proposed construction that do not comply with the Building Code in the Confirmation of Dispute (Exhibit 2). The Respondent further stated that these technical requirements were not discussed with the Applicant as part of the building permit application process.
The Respondent indicated that there is no material standard in the Building Code for the use of EPS foam as a structural element and that the documents submitted for building permit did not consider protection for the steel studs from corrosion as specified in CSA S136 as referenced in Article 4.3.4.2. The Respondent further submitted that they would expect a proposed construction material, that is not referenced in the Building Code, to be tested or listed as a construction product.
4. Commission Ruling
It is the decision of the Building Code Commission that under clause 24(1)(a) of the Building Code Act, 1992, the Commission does not have the jurisdiction to make a determination on the issues raised in relation to the proposed use of Polycore Foundation system at #9 and #11 Annamaria Drive, Keswick, Ontario.
5. Reasons
i. Subsection 24(1) of the Building Code Act, 1992, provides the Commission with the jurisdiction to resolve disputes between an applicant for a building permit, the holder of a building permit or a person to whom an order has been issued and the chief building official, a registered code agency or inspector concerning the sufficiency of compliance with the technical requirements of the Building Code. The Commission heard evidence that the dispute centers on the use of Polycore Foundation system for the below-grade foundation walls in the construction of a new two-storey semi-detached house at the subject site. The Commission also heard evidence that calculations and technical information for the Polycore Foundation system could be supplied by the Applicant, but these had not been submitted to nor considered by the Respondent prior to the Building Code Commission hearing. Therefore, based on the evidence and testimony, it is the Commission’s opinion that it does not have jurisdiction to make a determination in this matter, since the requirements of section 8 of the Building Code Act have not been met, as information required for the permit review had not been submitted by the Applicant and further, had not been considered by the Respondent.
ii. The Commission understood that there is a disagreement between the Chief Building Official and the Applicant to the Building Code Commission regarding the building permit process. However, the Commission has a very narrow jurisdiction as outlined in subsection 24(1) of the Building Code Act. The Commission’s jurisdiction typically does not extend to resolving disputes pertaining to administrative provisions of the Building Code, municipal by-laws, or the role and responsibilities of municipal building officials in implementing those legislative provisions.
Dated at the City of Toronto this 20th day in the month of August in the year 2024 for application number B-2024-06.
Stephen Wong, Chair
Michael Egberts
Leszek Muniak```