Citation: Frank v. Di Perna 2024 ONBCC 2

Ruling No.: 24-02-1636

Application No.: B-2023-20

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 3.2.2.38. of Division B of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Keith Frank, Hagerman Corners Community Homes, Markham, Ontario, for the resolution of a dispute with Stephanie Di Perna, Chief Building Official, City of Markham, to determine whether the portion of an existing building that houses eight barrier free units classified as a Group C, residential major occupancy, provides sufficiency of compliance with Article 3.2.2.38. of Division B, when considering the definition of “care occupancy” as defined by Article 1.4.1.2. of Division A of the Building Code, at 4460,14th Avenue, Markham, Ontario.

APPLICANT Keith Frank Hagerman Corners Community Homes Markham, Ontario

RESPONDENT Stephanie Di Perna Chief Building Official City of Markham, Ontario

PANEL Stephen Wong, Chair Matthew Graham Michael Egberts

PLACE via video conference

DATE OF HEARING February 6, 2024

DATE OF RULING February 6, 2024

APPEARANCES Keith Frank Hagerman Corners Community Homes Markham, Ontario The Applicant

Dr. Ryan Cyrus Architect 2KTA Architects Toronto, Ontario Agent for the Applicant

Billy Lai Project Manager CMS Building Consultants Inc. Toronto, Ontario Agent for the Applicant

Stephanie Di Perna Chief Building Official City of Markham Markham, Ontario The Respondent

Tony Boyko Manager, Building Code Inspections City of Markham Markham, Ontario Designate for the Respondent

RULING

1. Particulars of Dispute

The Applicant received an Order to Comply under the Building Code Act, 1992, with direction to obtain a Change of Use Permit as per s.10(1) of the Building Code Act, at 4460 14th Avenue, Markham, Ontario.

The subject building is existing, 5 storeys in building height, noncombustible construction with a fire alarm system and a standpipe and hose system, and is classified as residential Group C occupancy. As part of the original construction eight of the suites, two each on floors 2 to 5, were constructed as barrier free units.

The dispute involves an Order to Comply requiring the Applicant to apply for a Change of Use permit relative to the definition of Care occupancy (Group B, Division 3 major occupancy). The dispute concerns whether the portion of the building containing barrier free suites (on floors 2 to 5) should be classified as Group B, Division 3 major occupancy, resulting in a change to the original Group C major occupancy.

At the outset of the hearing, the Respondent requested that the Commission consider whether it had jurisdiction to make a determination in the matter.

The Commission informed the parties that the panel would need to address the jurisdictional

matter before hearing any technical issues. The Commission requested that the parties speak to

the issue of jurisdiction. Following the 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

Article 3.2.2.38. Group B, Division 2 or Division 3, Any Height, Any Area, Sprinklered

(1) Except as permitted by Articles 3.2.2.39. to 3.2.2.41., a building classified as Group B, Division 2 or Division 3 shall conform to Sentence (2).

(2) Except as permitted by Article 3.2.2.16., the building referred to in Sentence (1) shall be of noncombustible construction, and,

(a) except as permitted by Sentence 3.2.2.7.(1), the building shall be sprinklered,

(b) floor assemblies shall be fire separations with a fire-resistance rating not less than 2 h,

(c) mezzanines shall have a fire-resistance rating not less 1 h, and

(d) loadbearing walls, columns and arches shall have a fire-resistance rating not less than that required for the supported assembly.

3. Applicant’s Position

In response to concerns regarding jurisdiction the Chair requested the Agent for the Applicant (the Agent) to provide comments. The Agent submitted that the City of Markham had issued an Order to Comply for a Change of Use permit, which stated that a portion of the building which houses eight barrier free suites falls under Group B, Division 3 Care major occupancy rather than Group C Residential Occupancy because some of the residents are unable to evacuate on their own.

Further, the Agent advised the Commission that the building was designed in 1991 and was approved under the 1997 Building Code prior to the existence of Group B, Division 3 Care major occupancies in the current Building Code. The suites in question have been used for the same purpose since then. It was only with the 2012 version of the Building Code that fine-tuning of the Group B, Division 3 Care major occupancy, particularly in terms of self-evacuation, was added.

In response to questions, the Agent advised that the dispute was initiated when a Markham Fire Prevention Officer issued an order under the Fire Prevention and Protection Act and corresponding Fire Code regulations. The Agent indicated he understood a change of use permit under the Building Code would be required to assess the requirements to upgrade the affected suites. However, the Agent maintained there was no change in the use of the 8 suites from the original permit and therefore, a change of use permit was not required.

4. Respondent’s Position

The Respondent advised that on January 31, 2023, an Order to Comply No. 23 –112821 was issued for the change of use of eight suites from Group C Residential major occupancy to Group B, Division 3 Care major occupancy.

The Commission heard that based on assessment from the Fire Protection Officer it was determined that affected occupants are non-ambulatory and therefore would be incapable of evacuating the suite, if necessary, without the assistance of another person.

The Respondent advised that it is their opinion that the nature of the dispute does not concern the sufficiency of compliance with the technical requirements of the building code. Rather the dispute concerns an Order issued under authority of Section 12 of the Building Code Act for a Change of Use of residential suites from Group C Residential major occupancy to Group B, Division 3 Care major occupancy without a permit being issued by the Chief Building Official.

Further the Respondent advised the City of Markham has no record of the existence of the eight suites being classified and occupied as a Group B, Division 3 Care major occupancy prior to the amendment of the Building Code Act that established the provisions of Section 10 of the Building Code Act ‘Change of Use’.

In addition, Article 3.2.2.38. of Division B of the Building Code raised by the Applicant as

being in dispute, has not been requested or discussed with the City of Markham.

In response to questions, the Respondent advised it was the Fire Prevention Officer that determined the non-ambulatory circumstances of the affected suite occupants.

5. 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 matter at 4460,14th Avenue, Markham, Ontario.

6. Reasons

i) Subsection 24(1) of the Building Code Act, 1992, provides the Commission with the jurisdiction to resolve disputes between a permit applicant, permit holder 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 Code.

ii) While the Commission understands there is a dispute between the Applicant and the Respondent regarding an Order to Comply for a change of use permit. The Commission is of the opinion that matters relating to s. 10(1) of the Building Code Act are not technical issues as stated under s 24(1) of the Building Code Act. Therefore, the Commission does not have jurisdiction to address matters relating to s 10(1) Change of Use in the Building Code Act.

iii) The Commission heard that the assessment of the occupants’ ambulatory conditions was established by a Fire Prevention Officer under the Fire Protection and Prevention Act and Fire Code regulations.

The Commission does not have jurisdiction under s 24(1) of the Building Code Act to make determination on matters relating to the Fire Prevention and Protection Act and the corresponding Fire Code regulation.

iv) The Applicant identified Article 3.2.2.38. of Division B of the Building Code as a technical building code matter in dispute.

The Commission heard testimony that the dispute centres on previous historical records to establish the use of the eight existing barrier free suites as part of the original construction and whether a change of use has occurred. Based on the parties’ submissions, the Commission determined that there is no technical dispute regarding Article 3.2.2.38. of Division B of the Building Code.

Dated at the City of Toronto this 6th day in the month of February in the year 2024 for application number B-2023-20.

Stephen Wong, Chair

Matthew Graham

Michael Egberts