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BCC Ruling No. 15-27-1416

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Ruling No.: 15-27-1416
Application No.: B 2015-23

 

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 3.3.1.7., Sentences 11.3.1.2.(1) and 11.3.3.2.(2) or (3) of Division B of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Cynthia Zahoruk for the resolution of a dispute with Ed VanderWindt, Chief Building Official, to determine whether the proposed installation of an elevator to facilitate barrier-free access to the second storey of an existing building provides sufficiency of compliance with Article 3.3.1.7. when considering Sentences 11.3.1.2.(1) and 11.3.3.2. (2) or (3) of Division B, of the Building Code at 1552 Highway 6, City of Hamilton, Ontario.

APPLICANT

Cynthia Zahoruk
Cynthia Zahoruk Architects Inc.
Burlington, Ontario

RESPONDENT

Ed VanderWindt
Chief Building Official
City of Hamilton, Ontario

PANEL

Alison Orr, Chair-Designate
Tony Chow
Marina Huissoon

PLACE

City of Toronto, Ontario

DATE OF HEARING

October 8, 2015

DATE OF RULING

October 8, 2015

APPEARANCES

Cynthia Zahoruk
Cynthia Zahoruk Architects Inc.
Burlington, Ontario
Applicant

George Wong
Manager, Building Engineering and Zoning
City of Hamilton, Ontario
Designate for the Respondent

Radek Wodzinowski
Building Engineer
City of Hamilton, Ontario
Designate for the Respondent

RULING

 

1. Particulars of Dispute

The Applicant received a permit to renovate an existing building known as the United Church of Canada –Hamilton Conference, 1552 #6 Highway, Freelton, Ontario.

The existing building was constructed in 1960 and has a building area of 280 m2. It is a two storey, Group A Division 2 major occupancy building, constructed of combustible and non-combustible materials with no fire alarm, smoke alarm, sprinkler or standpipe systems. The building is equipped with emergency lighting, emergency exit signage and exits from each floor.

The construction in dispute revolves around the renovations proposing to install a new exterior walkway and door operator at the entrance of the building, widening the doorway at the main lobby, install a new elevator for access to the second floor, renovation of the second floor washroom to make it barrier–free.

The dispute centers on whether the renovations falling under Part 11 of Division B of the Code, require compliance with Article 3.3.1.7. “Protection on Floor Areas with Barrier Free Path of Travel” of Division B of the Code, as a result of the proposed elevator providing access to the second storey of the existing building.

2. Provisions of the Building Code in Dispute

3.3.1.7. Protection on Floor Areas with a Barrier-Free Path of Travel
  1. (1) Except as provided in Sentences (2) and (3), every floor area above or below the first storey that has a barrier-free path of travel shall,
    1. (a) be served by an elevator,
      1. (i) conforming to Sentences 3.2.6.5.(4) to (6),
      2. (ii) protected against fire in conformance with Clause 3.2.6.5.(3)(b) or (c), and
      3. (iii) in a building over 3 storeys in building height, protected against smoke movement so that the hoistway will not contain more than 1% by volume of contaminated air from a fire floor during a period of 2 h after the start of a fire, assuming an outdoor temperature equal to the January design temperature on a 2.5% basis determined in conformance with MMAH Supplementary Standard SB-1, “Climatic and Seismic Data”, or
    2. (b) be divided into at least two zones by fire separations conforming to Sentences (4) to (6) so that,
      1. (i) persons with physical disabilities can be accommodated in each zone,
      2. (ii) the travel distance from any point in one zone to a doorway leading to another zone shall be not more than the value for travel distance permitted by Sentence 3.4.2.5.(1) for the occupancy classification of the zone, and
      3. (iii) a barrier-free path of travel is provided to an exit.

  2. (2) In residential occupancies, the requirements of Sentence (1) are waived if a balcony conforming to Sentence (7) is provided for each suite, except for suites on the storey containing the barrier-free entrance described in Article 3.8.1.2.

  3. (3) The requirements of Sentences (1) and (2) are waived when the building is sprinklered.

  4. (4) Except as permitted by Sentence (5), the fire separations referred to in Clause (1)(b) shall have a fire-resistance rating not less than 1 h.

  5. (5) The fire-resistance rating of the fire separations referred to in Clause (1)(b) is permitted to be less than 1 h but not less than 45 min provided the fire-resistance rating required by Subsection 3.2.2. is permitted to be less than 1 h for,
    1. (a) the floor assembly above the floor area, or
    2. (b) the floor assembly below the floor area, if there is no floor assembly above.

  6. (6) A door acting as a closure in a fire separation referred to in Clause (1)(b) shall be weatherstripped or otherwise designed and installed to retard the passage of smoke.

  7. (7) A balcony required by Sentence (2) shall,
    1. (a) be provided with a door way having a clear width of not less that 800 mm when the door is in the open position,
    2. (b) have no projection above the walking surface more than 13 mm,
    3. (c) be not less than 1.5 m deep from the outside face of the exterior wall to the inside edge of the balcony, and
    4. (d) provide not less than 0.5 m2 for each occupant of the suite.

11.3.1.2. New Building Systems and Extension of Existing Building Systems
  1. (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.

11.3.3.2. Extensive Renovation
  1. (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,
    1. (a) new interior walls or floor assemblies are installed,
    2. (b) the suite has an area greater than 300 m2, and
    3. (c) the suite is located in,
      1. (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
      2. (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.
  2. (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.

3. Applicant’s Position

The Applicant submitted that the subject dispute centers on whether compliance with Article 3.3.1.7. of Division B is required due to the installation of a elevator that will provide barrier-free access to a limited area of the second storey.

The Applicant explained that the construction being proposed falls under Part 11, Division B of the Building Code as per Division A, Sentence 1.1.2.6.(1), as the building has been in existence for at least 5 years. The Applicant contended that the performance level of the subject building would not be decreased as the scope of work being proposed retains all existing exits, separations and other life safety systems.

The Applicant submitted that given the area of the suite at each floor is less than 300 m2, Sentence 11.3.3.2.(3) is applicable. She argued that although this Sentence refers to Section 3.8. of Division B for barrier-free compliance; it does not reference any requirements to conform to Division B, Article 3.3.1.7. The Applicant argued that the proposed construction falls under Part 11 of the Building Code, and as such, the existing second storey should not have to be modified to comply with Article 3.3.1.7. without a specific Code requirement from Part 11 that refers to Article 3.3.1.7.

In support of her argument, the Applicant submitted two technical opinions, the first of which was obtained from staff at the Ministry of Municipal Affairs and Housing and the second, from Morrison Hershfield Consulting Engineers. The Applicant pointed out that both technical opinions supported her position that Article 3.3.1.7. was not applicable to the proposed construction.

The Applicant explained that the Respondent believes Sentence 11.3.1.2.(1) of Division B applies to the proposed construction. Sentence 11.3.1.2.(1) requires that a new "building system" comply with all other Parts of the Code. The Applicant submitted that it is the Respondent’s position that the new elevator, providing a barrier-free path of travel to the second floor area, can be considered to be a new "building system" and as such, compliance with Article 3.3.1.7. “Protection on Floor Areas with Barrier Free Path of Travel” is required.

The Applicant maintained that in her opinion the proposed construction does not constitute a “building system” as described by Sentence 11.1.1.2.(1). Further, the Applicant maintained, that even if the proposed work could be considered a “building system”, Sentence 11.3.1.2.(1) only requires new building systems or extensions of existing building systems to comply with other parts of the Code.

The Applicant argued that in this case, the existing second floor layout, which is not undergoing any modifications, is neither new nor an extension of an existing system. Consequently she believes that Sentence 11.3.1.2.(1) is not applicable and therefore, it is not required to comply with other Parts of the Code such as Article 3.3.1.7. for the protection of a barrier-free path of travel.

In support of her argument, the Applicant submitted that the Appendix note for Sentence 11.3.3.2.(3) states in part, “…any new construction is subject to the barrier-free design provisions listed in 11.3.3.32.(3). Sentence 1.1.2.7.(1) of Division A continues to apply, so that any existing construction that is not being materially alters as part of the renovation need not include barrier free design features”. The Applicant maintained that the intent of these provisions is to make more suites in buildings accessible for people with disabilities and not make these requirements more onerous than necessary for building owners.

In summary, the Applicant maintained that installing an elevator in an existing building, which provides access to an existing floor area, does not trigger the requirement for a barrier-free path of travel or any barrier-free modifications to be extended to the floor area the elevator serves. The Applicant argued that since Sentence 11.3.3.2.(3) governs the requirements for the proposed construction and as it does not include any reference to Division B, Article 3.3.1.7., it is not applicable in this case.

4. Respondent’s Position

The Designate for the Respondent submitted that the Applicant proposed to construct a new exterior walkway conforming to Article 3.8.3.2. of Division B of the Building Code and to replace the existing washroom on the second floor of the building with a new barrier-free washroom. In addition, the Designate explained, the Applicant is proposing to install a new elevator that will provide barrier-free access to the existing second floor.

The Designate noted that the existing second floor complies with Part 11 compliance alternatives A71, A72 and A73 for a barrier-free path of travel. As a result, the Designate maintained Article 3.3.1.7. “Protection on Floor Areas with a Barrier-Free Path of Travel” is applicable in this case.

The Designate referred to Sentence 11.1.1.2.(1) of the Code, which defines a “building system” as “a combination of elements or components that form a complete major division of construction in the design of a building or part of a building, including ….a stair system”. He submitted that the subject elevator can be considered to be a stair system.

The Designate explained that as per Sentence 11.3.1.2.(1), a new “building system” or the extension of an existing “building system” is required to comply with all other Parts of the Code. As such, the subject elevator, considered to be a stair system, must be constructed in compliance with other parts of the Code, namely Article 3.3.1.7.

Further, the Designate explained that Article 3.3.1.7. requires every floor area above or below the first storey that has a barrier-free path of travel to be protected, as a result, the subject second floor area must be protected in accordance with Article 3.3.1.7.

The Designate outlined his concerns that once a barrier-free path of travel to the universal washroom on the second floor is provided then it needs to be protected in accordance with Article 3.3.1.7. In this case, the Designate suggested that an area of refuge be constructed so that a person who has used the elevator to access the second floor is protected in the event of a fire.

The Designate pointed out that the Appendix Note to Article 1.1.2.7. of Division A of the Code states that “only the areas or portions of a building being renovated, or other parts of a buildings adversely affected by that renovation need comply with the requirements of the Code”. In this case, the Designate maintained that if the second floor area is not protected in compliance with Article 3.3.1.7., the second floor is adversely affected by the proposed construction of the elevator.

In summary, the Designate maintained that it was the Municipality’s position that the proposed new elevator will provide access to the second floor, which contains an existing barrier-free path of travel in conformance with compliance alternatives A71, A72, and A73 of Part 11 of the Code, and as such, the floor area on the second floor is required to be protected as per Article 3.3.1.7.

5. Commission Ruling

It is the decision of the Building Code Commission that the proposed installation of an elevator to facilitate barrier-free access to the second storey of an existing building provides sufficiency of compliance with Article 3.3.1.7. when considering Sentences 11.3.1.2.(1) and 11.3.3.2. (2) or (3) of Division B, of the Building Code at 1552 Highway 6, City of Hamilton, Ontario.

6. Reasons

  1. Sentence 1.1.2.6.(1) of Division A states, “Except as provided in Sentence (2), Part 11 of Division B applies to the design and construction of existing buildings, or parts of existing buildings, that have been in existence for at least five years”. As the existing building has been in existence for more than 5 years, the Commission is of the opinion that Part 11 of the Code is applicable to the proposed renovations.

    Sentences 11.3.3.2.(2) and 11.3.3.2.(3) reference back to Section 3.8. of Division B for barrier-free compliance but there is no reference back to the requirements of Article 3.3.1.7. for protection of a barrier-free path of travel. It is the opinion of the Commission that Article 3.3.1.7. of Division B is not applicable to the proposed construction since the Part 11 requirements do not reference back to Article 3.3.1.7.

  2. Article 1.1.2.7. of Division A specifies that for existing buildings the “Code applies only to the design and construction of the extensions and those parts of the building that are subject to the material alteration or repair”. Appendix A of the Building Code provides explanatory material. A-1.1.2.7. states that “only the areas or portions of the building being renovated, or other parts of a building adversely affected by that renovation need comply with the requirements of the Code.”

    Based on the evidence presented, the Commission is of the opinion that the proposed renovation, which includes the installation of a washroom and elevator, does not adversely affect other parts of the building.

    The Commission is also of the opinion that, regardless of whether the second floor as it exists complies with the Code requirements for a barrier free path of travel, that the introduction of barrier free access to the second floor by way of a new elevator does not impose a subsequent requirement for unrenovated elements of the second floor to be upgraded.

Dated at the City of Toronto this 8th day in the month of October in the year 2015 for application number B 2015-23.

Alison Orr, Chair-Designate

Tony Chow

Marina Huissoon