Citation: Dhanani v. Di Perna 2024 ONBCC 14
Ruling No.: 24-14-1648
Application No.: B-2024-08
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 Article 10.1.1.2. of Division B and Clause 1.3.1.4.(1)(a) and Table 1.3.1.4. of Division C of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Nashila Dhanani, for the resolution of a dispute with Stephanie Di Perna, Chief Building Official of the City of Markham, to determine whether the proposal to consider four suites in a five-storey building, each suite containing three subleased bedrooms totaling a capacity of 12 individuals, as a “residential occupancy” versus “care occupancy”, provides sufficiency of compliance with Article 10.1.1.2. of Division B of the Building Code and Clause 1.3.1.4.(1)(a) and Table 1.3.1.4. of Division C of the Building Code, when considering the definition of “care occupancy” and “residential occupancy” of Article 1.4.1.2. of Division A of the Building Code, at 25 Deverill Court, Markham, Ontario.
APPLICANT Nashila Dhanani East Markham Non Profit Homes Markham, Ontario
RESPONDENT Stephanie Di Perna Director of Building Standard and Chief Building Official City of Markham Markham, Ontario
PANEL Stephen Wong, Chair Christina Kalt Alexandra Chow
PLACE via video conference
DATE OF HEARING August 27, 2024
DATE OF RULING August 27, 2024
APPEARANCES Nashila Dhanani East Markham Non Profit Homes Markham, Ontario Applicant
Jake Reilly Project Manager Norris Fire Consulting Inc. Pickering, Ontario Agent for the Applicant
Mike Norris Principal Norris Fire Consulting Inc. Pickering, Ontario Agent for the Applicant
Stephanie Di Perna Director of Building Standard and Chief Building Official City of Markham Markham, Ontario Respondent
Sheila Kertz Deputy Chief Building Official City of Markham Markham, 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 alleged deficiencies at 25 Deverill Court, Markham, Ontario.
The subject building is an existing five-storey residential building with an underground parking garage. Four of the 120 existing residential suites between floor levels two to five are operated by Participation House. Each of these four suites contains three bedrooms. A combined total of 12 individuals are housed within these four suites. Participation House provides both facility and care to the residents of these four suites, under their supportive housing program.
The dispute between the two parties’ centers on whether a change of use from a residential occupancy to a care occupancy has occurred in the four suites operated by Participation House and further whether a building permit under section 10 of the Building Code Act is required.
More specifically the dispute concerns whether the proposal to consider the four suites as a residential occupancy versus care occupancy, provides sufficiency of compliance with Article 10.1.1.2. of Division B of the Building Code and Clause 1.3.1.4.(1)(a) and Table 1.3.1.4. of Division C of the Building Code, when considering the definitions of care occupancy and residential occupancy under Article 1.4.1.2. of Division A of the Building Code.
At the outset of the hearing, the Respondent objected to the hearing proceeding based on the jurisdiction of the Commission outlined in subsection 24(1) of the Building Code Act. Following both parties’ submissions on jurisdiction, the panel members obtained legal advice from the Ministry of Municipal Affairs and Housing’s Legal Counsel. Subsequently, the chair disclosed the legal advice received and verbally communicated the panel’s decision on jurisdiction to the parties.
2. Provisions of the Building Code in dispute
Division A, Article 1.4.1.2. Defined Terms
Care occupancy (Group B, Division 3) means an occupancy, other than a retirement home, in which special care is provided by a facility, directly through its staff or indirectly through another provider, to residents of the facility,
(a) who require special care because of cognitive or physical limitations, and
(b) who, as a result of those limitations, would be incapable of evacuating the occupancy, if necessary, without the assistance of another person.
Residential occupancy means an occupancy in which sleeping accommodation is provided to residents who are not harboured for the purpose of receiving special care or treatment and are not involuntarily detained and includes an occupancy in which sleeping accommodation is provided to residents of a retirement home.
Division B, Article 10.1.1.2. Change in Major Occupancy
(1) The following changes of use are also deemed to be a change in major occupancy for the purposes of this Part:
(a) a suite of a Group C major occupancy is converted into more than one suite of a Group C major occupancy,
(b) a suite or part of a suite of a Group A, Division 2 or Group A, Division 4 major occupancy is converted to a gaming premises,
(c) a farm building or part of a farm building is changed to a major occupancy,
(d) a building or part of a building is changed to a post-disaster building,
(e) a building or part of a building is changed to a retirement home, or
(f) the use of a building or part of a building is changed and the previous major occupancy of the building or part of the building cannot be determined.
Division C, Article 1.3.1.4. Permits Under Section 10 of the Act
(1) Except as provided in Sentence (2), the following changes in use of a building or part of a building constitute an increase in hazard for the purposes of section 10 of the Act and require a permit under section 10 of the Act:
(a) a change of the major occupancy of all or part of a building that is designated with a “Y” in Table 1.3.1.4. takes place,
Table 1.3.1.4. Permit Required for Change of Use Forming Part of Sentence 1.3.1.4.(1)(1)
| TO(3) \ FROM(2) | A-1 | A-2 | A-3 | A-4 | B-1 | B-2 | B-3 | C | D | E | F-1 | F-2 | F-3 |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| A-1 | N(5) | Y | Y | N(5) | Y | Y | Y | Y | Y | Y | Y | Y | Y |
| A-2 | Y | N(5) | Y | N(5) | Y | Y | Y | Y | Y | Y | Y | Y | Y |
| A-3 | Y | Y | N(5) | N(5) | Y | Y | Y | Y | Y | Y | Y | Y | Y |
| A-4 | Y | Y | Y | N(5) | Y | Y | Y | Y | Y | Y | Y | Y | Y |
| B-1 | Y | Y | Y | N(5) | N(5) | Y | Y | Y | Y | Y | Y | Y | Y |
| B-2 | Y | Y | Y | N(5) | Y | N(5) | Y | Y | Y | Y | Y | Y | Y |
| B-3 | Y | Y | Y | N(5) | Y | N(5) | N(5) | Y | Y | Y | Y | Y | Y |
| C | Y | Y | Y | N(5) | Y | N(5) | N(5) | (4) | Y | Y | Y | Y | Y |
| D | N(5) | N(5) | Y | N(5) | Y | N(5) | N(5) | Y | N(5) | Y | Y | N(5) | N(5) |
| E | Y | Y | Y | N(5) | Y | Y | Y | Y | Y | N(5) | Y | Y | Y |
| F-1 | Y | Y | Y | N(5) | Y | Y | Y | Y | Y | Y | N(5) | Y | Y |
| F-2 | Y | Y | Y | N(5) | Y | Y | Y | Y | Y | Y | N(5) | N(5) | Y |
| F-3 | Y | N(5) | Y | N(5) | Y | Y | Y | Y | N(5) | N(5) | N(5) | N(5) | N(5) |
| Col. 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 |
Notes to Table 1.3.1.4.:
(1) See Clause 1.3.1.4.(1)(a), Subclause 3.17.1.1.(1)(a)(i) of Division B and Clause 9.40.1.1.(1)(a) of Division B.
(2) Major occupancy of all or part of a building before change of use.
(3) Major occupancy of all or part of a building after change of use.
(4) See Clause 1.3.1.4.(1)(b), Subclause 3.17.1.1.(1)(a)(ii) of Division B and Clauses 9.40.1.1.(1)(b) and 11.4.2.3.(1)(b) of Division B.
(5) “N” is only applicable where the major occupancy of the entire suite is changed.
3. Applicant’s Position
The Agent for the Applicant (the “Agent”) submitted that the Applicant is proposing to install a fire suppression sprinkler system in the four suites in question as well as the common corridor serving these suites.
The Agent submitted that the building is not subject to a change of use since the building was constructed in 2008 using the 2006 Building Code. The Agent maintained the Applicant is of the opinion that, since the definitions provided in the Building Code for residential occupancy versus care occupancy have not been changed since the building was built, the classification of the occupancy of the suites remains the same and a change of use permit is not required.
The Agent stated that since the building was given occupancy in 2010, the occupants and use of the building suites have remained the same and no change of use has occurred.
In response to questions, the Agent further submitted that the Order to Comply issued by the Building Standards Department was issued after an Order under the Fire Code had been issued, in 2022, to the Applicant for remedial action to retrofit the suites due to the level of care being provided to the occupants of these four suites.
The Agent confirmed that the Applicant has not applied for a change of use permit.
4. Respondent’s Position
The Respondent submitted that as a result of receiving a building permit application for sprinkler installation within the four suites and common corridor serving these suites, the Building Standards Department noticed that they had no record of these four suites being classified as a Group B, Division 3 major occupancy. As a result, an Order to Comply was issued to the Applicant. The Order was issued for violation of section 10 of the Building Code Act, for changing the use of a building or part of the building (from a Group C occupancy to a Group B occupancy) without first obtaining a permit.
As Participation House provides facility and 24-hour care to 12 individual clients, it is understood that these clients are non-ambulatory and as a result, would be incapable of evacuating the suites without the assistance of another person in an emergency. Documentation received by the Respondent indicates that these clients are receiving special and/or supervision care and do require assistance to evacuate.
The Respondent maintained that there is no technical Building Code dispute between the parties, as an application for a change of use permit has not been submitted. Although a building permit application for a sprinkler system has been submitted and reviewed, this sprinkler system installation was proposed to remedy an Order given to Participation House by the Fire Department to satisfy the Fire Code.
Therefore, in summary, it is the Respondent’s opinion that the Commission does not have jurisdiction to hear the matter, as there are no technical Building Code matters in dispute.
5. Commission Ruling
It is the decision of the Building Code Commission that, under subsection 24(1) 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 matter at 25 Deverill Court, Markham, Ontario.
6. Reasons
i) The Commission is a quasi-judicial tribunal whose mandate is set out in subsection 24(1) of the Building Code Act, 1992, which states:
24(1) This section applies if there is a dispute,
(a) between an applicant for a permit, a holder of a permit or a person to whom an order is given and the chief building official, a registered code agency or an inspector concerning the sufficiency of compliance with the technical requirements of the building code;
The Commission received evidence that an Order to Comply was issued to the Applicant, which requires the Applicant to make an application for a change of use permit under section 10 of the Building Code Act, 1992. The Commission heard arguments from the Applicant that a change of use has not occurred in this building since the building was built and received occupancy in 2010, and therefore a change of use permit is not required.
The Commission heard from the Respondent that there is no technical dispute between the parties, as an application for a change of use permit has not been submitted. The Respondent confirmed that, in order to remedy an Order issued by the Fire Department, a building permit application for a sprinkler system has been submitted by the Applicant and reviewed.
Based on legal advice received and submissions made by both parties, the Commission is of the opinion that it does not have the jurisdiction to hear the matter. Disputes concerning provisions of the Building Code Act and disputes concerning administrative requirements of the Building Code are not considered to be technical disputes and therefore, are not within the Commission’s mandate, as set out in subsection 24(1) of the Building Code Act.
Dated at the City of Toronto this day 27th day in the month of August in the year 2024 for application number B-2024-08.
Stephen Wong, Chair
Christina Kalt
Alexandra Chow