Citation: Enge v. Warburton 2024 ONBCC 3

Ruling No.: 24-03-1637

Application No.: B-2023-22

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 Sentences 3.7.4.16.(2) of Division B of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Travis Eng, on behalf of Rainy River District School Board, Fort Francis, Ontario, for the resolution of a dispute with Graham Warburton, Chief Building Official of the Town of Atikokan, to determine whether the as-constructed gender-neutral multi-stall inclusive washroom, and the washrooms in the kindergarten (JK/SK) classrooms, provides sufficiency of compliance with Sentence 3.7.4.16.(2) of Division B of the Building Code at 324 Mercury Avenue, Atikokan, Ontario.

APPLICANT Travis Enge Manager of Plant Operations and Maintenance Rainy River District School Board Fort Francis, Ontario

RESPONDENT Graham Warburton Chief Building Official Town of Atikokan Atikokan, Ontario

PANEL Matthew Graham, Chair Designate Alison Orr Alexandra Chow

PLACE via video conference

DATE OF HEARING February 27, 2024

DATE OF RULING February 27, 2024

APPEARANCES Travis Enge Manager of Plant Operations and Maintenance Rainy River District School Board Fort Francis, Ontario Applicant

Ian Hill Principal CRITCHLEY HILL ARCHITECTURE Inc. North Bay, ON Agent for the Applicant

Heather Campbell Director Rainy River District School Board Fort Francis, Ontario Agent for the Applicant

Graham Warburton Chief Building Official Town of Atikokan Atikokan, Ontario Respondent

Paul Manzon Building Inspector Town of Atikokan Atikokan, Ontario Designate for the Respondent

Jason Young Chief Administrative Officer Town of Atikokan Atikokan, Ontario Designate for the Respondent

RULING

1. Particulars of Dispute

The Applicant applied for a building permit for construction of additions and alterations to a school at 324 Mercury Avenue, in Atikokan, Ontario. The school contains facilities for students from Junior Kindergarten to Grade 12. The building permit was issued in December of 2020, and construction was ongoing, with several phases, to allow the building to have occupancy during construction.

Regarding the washrooms in the secondary school portion, a change notice was issued in October of 2021, to change the configuration of washrooms to incorporate a gender-neutral design. The original design was configured with gender-designated washrooms with water closets in stalls, and in an enclosed room, with lavatories. The change provided water closets located in individual rooms with full height doors, to provide more privacy for the water closets than would be provided in a stall, and lavatories located behind a low wall, 1200 mm high, with the washroom area open to the corridor. The work was carried out, without formal approval. An Order to Comply was issued in May of 2023. Compensating measures were proposed to the Respondent to provide plexiglass with an opaque film for more screening for the lavatories, however that proposal was withdrawn by the Applicant prior to the hearing.

Regarding the washrooms in the Junior Kindergarten (JK) Senior Kindergarten (SK) portion, there are 2 classrooms, each with 2 water closets located in stalls within a separate room accessed from the classroom, and one lavatory in the classroom, visible from the doorway to each classroom. Compensating measures were proposed to the Respondent to provide a retractable curtain that would provide privacy for the lavatory, however that proposal was withdrawn by the Applicant prior to the hearing.

The dispute before the Commission is whether the as-constructed gender-neutral multi-stall inclusive washroom, and the washrooms in the JK/SK classrooms, provides sufficiency of compliance with Sentence 3.7.4.16.(2) of Division B of the Building Code.

2. Provisions of the Building Code in Dispute

Article 3.7.4.16. Privacy

(1) If a room contains not more than 1 water closet, the doorway to the room shall be provided with a full height door that is capable of being locked from the inside.

(2) Except in a room for private use, water closets, urinals, lavatories, showers and bathtubs shall not be visible from the entrance to the room where it contains at least,

(a) two water closets,

(b) one water closet and one urinal,

(c) one shower stall

3. Applicant’s Position

Regarding the washrooms in the secondary school portion, one of the Agents for the Applicant explained the objective was to have an inclusive safe access to washrooms for students. Traditional washrooms with gender specific stalls are difficult to supervise, and as a result, students feel unsafe when using them. The Agent explained that water closets in self contained rooms with full height doors, with sinks nearby, to facilitate hand washing, addressed these safety issues. The Agent submitted that the lavatories were not within the room with the water closet because of safety issues and vandalism. The Agent explained that the Applicant’s position was that the privacy provided by the 1200 mm high wall was adequate.

Regarding the lavatories in the JK/SK classrooms, the placement was open to the classroom to allow teachers and education assistants to facilitate hygiene by encouraging and monitoring hand washing.

4. Respondent’s Position

The Designate for the Respondent submitted that the Sentence 3.7.4.16.(2) of Division B of the Building Code required lavatories to be in a room, and not visible from the entrance to the room.

Regarding the secondary school portion of the building, the Designate for the Respondent advised that several configurations of gender-neutral washrooms in other locations were reviewed and considered, but they did not have lavatories that were open to a corridor, as in this case. The Designate advised that a change notice was submitted to provide plexiglass with an opaque film above the 1200 mm wall, which the Town was willing to consider, however that proposal was withdrawn.

Regarding the JK/SK lavatory, the Designate for the Respondent submitted that because the lavatory was visible from the entrance to the classroom, it did not meet Sentence 3.7.4.16.(2) A change notice was submitted to provide a retractable curtain around the lavatory area, however that proposal was also withdrawn.

5. Commission Ruling

It is the decision of the Building Code Commission that the as-constructed gender-neutral multi-stall inclusive washroom, and the washrooms in the JK/SK classrooms, does not provide sufficiency of compliance with Sentence 3.7.4.16.(2) of Division B of the Building Code at 324 Mercury Avenue, Atikokan, Ontario

6. Reasons

i) Building Code Article 3.7.4.16. Privacy states:

(1) If a room contains not more than 1 water closet, the doorway to the room shall be provided with a full height door that is capable of being locked from the inside.

(2) Except in a room for private use, water closets, urinals, lavatories, showers and bathtubs shall not be visible from the entrance to the room where it contains at least,

(a) two water closets,

(b) one water closet and one urinal,

(c) one shower stall

It is the Commission’s opinion that the Building Code requires privacy for lavatories.

ii) The Commission received evidence that the gender-neutral washroom serving the secondary students contains individual water closets within private rooms equipped with full height doors and locks with lavatories behind a partial height wall such that individuals using the lavatories would be visible from the corridor. It is the Commission’s opinion that the partial height wall does not provide the level of privacy intended by Sentence 3.7.4.16.(2), as this configuration provides a direct sightline to users of the lavatories.

iii) The Commission heard that there are two water closets in stalls within rooms accessed from each JK/SK classroom. The lavatories serving the water closets are located outside the room of where the water closets are located, within the classroom. The drawings submitted show a configuration where there is a clear sightline to the lavatory from the entrance to the classroom, and from within the classroom itself (Drawing A2.09 in Exhibit 1, Submission1.5). In this configuration, there is no opportunity for privacy for a child, if it is desired or needed, with or without the assistance of a teacher or classroom assistant.

iv) No compensating measures were offered to the Commission.

Dated at the City of Toronto this 27th day in the month of February in the year 2024 for application number B-2023-22.

Matthew Graham, Chair Designate

Alison Orr

Alexandra Chow