Ruling No.: 24-20-1624
Application No.: B-2024-14
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 Section 3.8., Articles 11.3.1.2., 11.3.2.1. and 11.3.3.2. of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Sarah Korba Alakhras, for the resolution of a dispute with Jeremy Laur, Chief Building Official, to determine whether the proposal to reconstruct the rear extension of the building that was destroyed by fire without providing a barrier-free design for the rebuilt portion, provides sufficiency of compliance with Section 3.8., Articles 11.3.1.2., 11.3.2.1. and 11.3.3.2. of Division B of the Building Code at 146-150 Wyndham Street North, Guelph, Ontario.
APPLICANT Sarah Korba Alakhras
RocMar Engineering Inc.,
Mississauga, Ontario
RESPONDENT Jeremy Laur
Chief Building Official
City of Guelph, Ontario
PANEL Stephen Wong
Elektra Vrachas
Michael Egberts
PLACE via video conference
DATE OF HEARING October 22, 2024
DATE OF RULING October 22, 2024
APPEARANCES Sarah Korba Alakhras
RocMar Engineering Inc.,
Mississauga, Ontario
Applicant
Marko Milicevic
RocMar Engineering Inc.,
Mississauga, Ontario
Agent for the Applicant
Jeremy Laur
Chief Building Official
City of Guelph, Ontario
Respondent
Nicholas Rosenberg
Program Manager, Permit Services
City of Guelph, Ontario
Designate for the Respondent
Daewon Lee
Technical Lead, Plans Examination
City of Guelph, 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 reconstruct and repair a building that was damaged by fire at 146-150 Wyndham Street North, Guelph, Ontario.
The subject building is three stories with a basement containing mixed uses, including Group D and E on the ground and basement levels, and multiple dwelling units on the second and third floors. The subject building was constructed in 2009 and consists of both combustible and non-combustible construction.
The construction in dispute involves whether the proposal to reconstruct a section of the rear of the building that was damaged by fire, and subsequently demolished, requires compliance with the barrier-free provisions set out in Section 3.8. of the Building Code when considering Part 11 of the Building Code, specifically Articles 11.3.1.2., 11.3.2.1. and 11.3.3.2.
2. Provisions of the Building Code in Dispute
Section 3.8. Barrier-Free Design (See Appendix A.)
3.8.1. General
3.8.1.1. Application
(1) The requirements of this Section apply to all buildings except,
(a) houses, triplexes and boarding or rooming houses with fewer than 8 boarders or roomers,
(b) buildings of Group F, Division 1 major occupancy, (See Appendix A.)
(c) buildings that are not intended to be occupied on a daily or full time basis, including automatic telephone exchanges, pumphouses and substations, and
(d) camps for housing of workers. (See Appendix A.)
11.3.1.2. New Building Systems and Extension of Existing Building Systems
(1) Except as provided in Article 11.3.3.1. and Section 11.5., the design and construction of a new building system or the extension of an existing building system, shall comply with all other Parts. (See Appendix A.)
A-11.3.1.2.(1) New and Extension of Existing Building System.
Generally, new or extended building systems should follow the Building Code for new construction, and where necessary, may seek some relief through compliance alternatives, alternative measures or match existing.
11.3.2.1. Portion of Extended Buildings
(1) Where an existing building is extended,
(a) this Part applies to the existing portion of the building, and
(b) the extended portion of the building shall comply with all other Parts.
11.3.3.2. Extensive Renovation (See Appendix A.)
(1) Where existing interior walls or ceilings or floor assemblies or roof assemblies are substantially removed in an existing building and new interior walls, ceilings, floor assemblies or roof assemblies are installed in the building, structural and fire-resistance elements shall be constructed in compliance with the requirements of the other Parts.
(2) Except as provided in Section 11.5., the proposed construction within an existing suite shall comply with the requirements of Section 3.8. where,
(a) new interior walls or floor assemblies are installed,
(b) the suite has an area greater than 300 m2, and
(c) the suite is located in,
(i) a floor area where the existing difference in elevation between the adjacent ground level and the floor level is not more than 200 mm, or
(ii) a normally occupied floor area which is accessible by a passenger type elevator or other platform equipped passenger elevating device from an entrance storey where the existing difference in elevation between the adjacent ground level and the entrance storey level is not more than 200 mm.
(3) Except as provided in Section 11.5., the proposed construction within an existing suite, other than a suite described in Sentence (2) or a suite in a building described in Clause 3.8.1.1.(1)(a), (b), (c) or (d), shall comply with the requirements of Sentences 3.8.1.3.(6), 3.8.2.3.(6), 3.8.3.1.(6), 3.8.3.3.(19), 3.8.3.7.(1), 3.8.3.15.(5) and 3.8.3.16.(4) where new interior walls or floor assemblies are installed. (See Appendix A.)
(4) Except as provided in Sentence (5), where existing interior walls or ceilings or floor assemblies or roof assemblies are substantially removed on any storey in an existing building and new interior walls, ceilings, floor assemblies or roof assemblies are installed, the storey shall be sprinklered if,
(a) the storey will contain a Group C major occupancy, and
(b) the building is over 3 storeys in building height.
(5) Sentence (4) does not apply where the building,
(a) conforms to Subclause 3.2.2.44.(1)(a)(ii), and
(b) contains dwelling units having means of egress conforming to Sentence 3.3.4.4.(8).
(6) Where existing interior walls or ceilings or floor assemblies or roof assemblies are substantially removed and new interior walls, ceilings, floor assemblies or roof assemblies are installed in an existing building or part of an existing building that is a retirement home, the following requirements apply:
(a) the retirement home shall be sprinklered,
(b) a voice communication system conforming to Article 3.2.4.23. shall be provided in the building, if Clause 3.2.6.8.(1)(b) or (c), as applicable, requires that such a voice communication system be provided in the building, and
(c) doors to suites and sleeping rooms not within suites in the retirement home, other than doors leading directly to the exterior, shall be equipped with self-closing devices.
A-11.3.3.2. Extensive Renovation.
In cases where extensive renovation of the building is proposed, there is generally no reason why the new systems should not comply with new construction requirements; in this case the applicant may seek relief only through “alternative measures”, should a construction difficulty arise that requires such relief. This would apply to the substantial renovation of the entire building.
A-11.3.3.2.(3) Application of Limited Barrier-Free Design Requirements in Renovations.
Certain barrier-free design provisions must be incorporated into all renovations where new interior walls or floor assemblies are installed other than in a suite described in Sentence (2) or in a suite in a building described in Sentence 3.8.1.1.(1). This includes construction within suites less than 300 m2 and suites on storeys or floor levels not accessible by a barrier-free path of travel. In those cases, any new construction is subject to the barrier-free design provisions listed in 11.3.3.2.(3). Sentence 1.1.2.7.(1) of Division A continues to apply, so that any existing construction that is not being materially altered as part of the renovation need not include barrier-free design features. The intent of these provisions is to make more suites and buildings accessible for people with sensory and other non-mobility disabilities. Not every person with a disability uses a wheelchair. Many people who use mobility aids such as canes or service animals or who have sensory disabilities are able to navigate stairs but would benefit from certain barrier-free elements such as lever door handles or an ambulatory washroom stall.
3. Applicant’s Position
The Applicant submitted that the proposed scope of work is to repair a section of the previously existing building that was damaged by fire and subsequently, demolished. The Applicant further submitted that the proposed repair is not considered a new addition and as such, the requirements of Section 3.8. do not apply to the proposed repair.
The Applicant submitted that the design requirements of Section 3.8. would require significant modifications to the existing portion of the building that was not demolished and would be prohibitive to reasonably include in the design for the rear extension.
In response to questions, the Applicant confirmed that the building side walls are located on the property line. The property to the north is currently a parking lot that is being redeveloped which would restrict access to the rear, and the property to the south currently has a public sidewalk that may be redeveloped which would also restrict access to the rear.
The Applicant further submitted that a barrier-free access from the street at the front of the property would not be possible without significant modifications to the existing portion of the building and emphasized that the residential units are located on the second and third floors, which require users of the suites to transit through multiple flights of stairs.
The Applicant submitted that the provisions of Sentence 11.3.3.2.(2) do not apply as the residential suites are less than 300 m2, are not within 200 mm of the ground level, and are not accessible by an elevator and therefore, each suite is not required to comply with the requirements of Section 3.8. of the Building Code.
4. Respondent’s Position
The Respondent submitted that the Applicant’s proposal involves an extension of the building where Sentence 11.3.1.2.(1) of Division B of the Building Code requires the extension to comply with all other Parts of the Building Code. The Respondent further submitted that the proposed construction including structure, fire separations, spatial separation, energy efficiency, and other building systems meet the requirements of all other Parts of the Building Code with the exception that the proposed construction for the rear extension does not comply with the barrier-free requirements of Section 3.8.
The Respondent submitted that they are open to considering an alternative solution to address the challenges with implementing the requirements of Section 3.8. However, the Respondent confirmed that no correspondence or application from the Applicant with respect to an alternative solution has been received.
5. Commission Ruling
It is the decision of the Building Code Commission that the proposal to reconstruct the rear extension of the building that was destroyed by fire without providing barrier-free design does not provide sufficiency of compliance with Section 3.8. of Division B of the Building Code when considering Articles 11.3.1.2. and 11.3.2.1 and 11.3.3.2 of Division B of the Building Code at 146-150 Wyndham Street North, Guelph, Ontario.
6. Reasons
i) Based on the testimony and evidence provided by the parties, it is the Commission’s opinion that the proposed construction is an “extensive renovation” and not a “basic renovation” as described in Part 11 of Division B of the Building Code.
As a result, it is the opinion of the Commission that the Applicant’s proposal does not comply with the requirements of Sentence 11.3.1.2.(1) of Division B of the Building Code which states:
“Except as provided in Article 11.3.3.1. and Section 11.5., the design and construction of a new building system or the extension of an existing building system, shall comply with all other Parts. (See Appendix A.)”
The Commission notes that Article 11.3.3.1. applies to basic renovation, and Section 11.5. provides for compliance alternatives which were not proposed.
ii) Although the Commission heard that significant portions of the proposed construction will comply with other parts of the Building Code, the Applicant has not demonstrated sufficiency of compliance with Section 3.8. Further, Sentence 11.3.2.1.(1) requires that when portions of buildings are being extended, the requirements of Part 11 applies to the existing portion of the building and the extended part of the building must comply with all other parts of the Building Code. Therefore, it is the opinion of the Commission that the proposed extension is required to comply with all other Parts of the Building Code which includes Section 3.8.
iii) The Applicant and Respondent provided testimony that the conditions at the site may require material alteration to the existing portion of the building to meet the full requirements of Section 3.8. of Division B of the Building Code for the proposed building extension. As noted in reason i) above that the proposed construction is considered by the Commission to be an extensive renovation, it is the opinion of the Commission that Article 11.3.3.2. Extensive Renovation applies to the proposed construction. The Commission notes that Sentence 11.3.3.2.(3) provides relief to a code user from complying with the full requirements of Section 3.8. in the proposed new extension. Therefore, it is the opinion of the Commission that the specific barrier-free design requirements listed in Sentence 11.3.3.2.(3) are applicable to the proposed building extension.
Further, the Commission heard from the Respondent that an alternative solution could be an avenue to address the matter of compliance with the barrier-free requirements. However, the Applicant has not proposed an alternative solution for consideration by the Respondent.
Dated at the City of Toronto this 22nd day in the month of October in the year 2024 for application number B-2024-14.
Stephen Wong, Chair
Elektra Vrachas
Michael Egberts