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BCC Ruling No. 01-09-802

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IN THE MATTER OF Subsection 24 (1) of the Building Code Act, 1992.

AND IN THE MATTER OF Sentences of Regulation 403, as amended by O. Reg. 22/98, 102/98, 122/98, 152/99, 278/99, 593/99, 597/99 and 205/00 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Mr. William (Bill) Zlepnig, President, Southway Inn, Ottawa, Ontario, for the resolution of a dispute with Ms. Catherine Junop, Director of Building Services, City of Ottawa, to determine whether the 13.25 litre water closets, proposed to be installed in the washrooms of the new hotel addition, provide sufficiency of compliance with Sentence of the Ontario Building Code at the Southway Inn, 2431 Bank Street, Ottawa, Ontario.

Mr. William (Bill) Zlepnig, President
Southway Inn
Ottawa, Ontario

Ms. Catherine Junop
Director of Building Services
City of Ottawa

Mr. Len King, Vice-Chair
Mr. Michael Steele
Mr. Fred Barkhouse

Toronto, Ontario

March 15th, 2001

March 15th, 2001

Mr. William (Bill) Zlepnig, President
Southway Inn
Ottawa, Ontario
The Applicant


1. The Applicant

Mr. William (Bill) Zlepnig, President, Southway Inn, Ottawa, Ontario, has received a building permit under the Building Code Act, 1992 and is currently constructing an addition to the Southway Inn, 2431 Bank Street, Ottawa, Ontario.

2. Description of Construction

The Applicant is presently constructing a new six storey, 75 room addition onto an existing two storey, 102 unit hotel for a total of 177 rooms. When completed, the enlarged Group C - residential occupancy will be six stories in building height, 5,238 m2 (56,360 ft2) in building area and will be of noncombustible construction.

The construction in dispute involves the proposed water closet fixtures the Applicant intends to install in all of the washrooms in the guest rooms of the new hotel addition. Instead of six litre flush toilets, the Applicant is proposing to use water closets that have a maximum flush cycle of 13.25 litres.

3. Dispute

The issue at dispute between the Applicant and Respondent is whether the 13.25 litre water closets, proposed to be installed in the washrooms of the new hotel addition, provide sufficiency of compliance with Sentence of the Ontario Building Code at the Southway Inn, 2431 Bank Street, Ottawa, Ontario.

This provision stipulates that the flush cycle for water closet and urinal fixtures shall not exceed the limits prescribed in Table For tank type water closets, this Table sets out that six litres is the maximum volume per flush cycle. The exemption to Sentence (3) is found in Sentence (2) of this Article. It permits a replacement fixture for one that existed before January 1, 1996 to conform to Table, which allows a 13.25 litre maximum flush for a tank type water closet.

At dispute therefore is the Applicant's proposal to use 13.25 litre toilets, not six litre toilets, in the new washrooms of the hotel he is currently constructing.

4. Provisions of the Ontario Building Code

Sentence Plumbing Fixtures

  1. Except as provided in Sentence (2) the flush cycle for each fixture that is a water closet or urinal shall not exceed the maximum flush cycle for that fixture listed in Table

5. Applicant's Position

The Applicant submitted that he is fully aware that the Ontario Building Code requires him to install six litre toilets in the new addition at his hotel. However, he wishes to install 13 litre toilets for the simple reason that, in his view, six litre toilets fail frequently and cannot be relied upon to perform consistently. To support his claim regarding the inadequacy of six litre toilets, the Applicant indicated that he had assembled significant amounts of data both through his own analysis and through the experience of others.

The Applicant stated that the problem with six litre flush toilets first came to his attention at his church. All the churches' toilet were replaced with 13 litre ones. It was this situation that caused him to think seriously about the kind of toilet he would install in his hotel expansion.

With respect to his own research on this issue, the Applicant indicated that he conducted a four week experiment as to the reliability of six litre toilets using a lavatory at his own hotel as the testing facility. He summarized his experiment and its results as follows:

"The existing toilet of 1983 (18-20 litre water closet), situated in a medium-to-high use lavatory, was replaced on January 11 2001 at 11:30 a.m. with a new 6-litre toilet. At 2:30 p.m. that same day we experienced our first plugged toilet. Over the next four-week period we experienced sixteen different such instances (attachment 1) where this new 6-litre toilet failed to meet the ability of its predecessor. Therefore, it was removed on February 7, 2001 and replaced with a 13-litre American Standard (Plebe model). This was a water savings of approximately 5-8 litres of water compared to the model of 1983. Since the new 13-litre toilet has been installed we have not experienced any such plugs or overflows.

"In conclusion, the 6-litre toilet installed, plugs and overflows on a regular basis, posing an inconvenience to guests as well as a health threat to our employees whereas the American Standard 13 litre (Plebe) is performing without plugging or overflowing eliminating all health hazards and at the same time there is a water savings of 5-8 litres."

In addition to this study, the Applicant noted that he also conducted a camera investigation from inside the sewer line to determine where the plugging was occurring and how. The pictures showed that the blockage was in the toilets. They also showed that the problem relates directly to the fact that the throat diameter of six litre toilets have been reduced to maintain water velocity with the reduced amount of water. But the narrower throat then causes friction, especially in the trap. This forces a separation of the liquids and solids. The end result is blockage. To rectify this situation, a second and third flush are sometimes necessary. If this becomes the case, as the Applicant argued, all water savings intended by utilizing six litre toilets are negated. Indeed, the reduction from 20 to 13 litres resulted in a savings of water with functional toilets, but the reduction to six litres has not really achieved either.

By way of background, the Applicant stated that prior to applying to the BCC he had been in touch with Code Advisors in the Housing Development and Buildings Branch of the Ministry of Municipal Affairs and Housing. As the government body responsible for developing and administering the OBC, they instructed him that six litres was the requirement for his project and that the exemptions in Sentence do not apply in his case. They also noted that the OBC provision referenced a standard developed by the Canadian Standards Association (CSA) CAN/CSA-B45.0, "General Requirements for Plumbing Fixtures". In order to meet this standard, manufacturers had to ensure that their water closets passed a CSA performance test. If he wanted more information about the CSA standard, they offered that he could contact CSA directly.

The Applicant continued that he did get in touch with CSA and, in fact, went to one of the meetings of the CSA committee responsible for the water closet standard. He indicated that he presented his concerns to the committee. He explained that his problem with the CSA standard is twofold. First, the testing involved does not use real life situations. As the Applicant stated; "golf balls and beer caps (which are used in the CSA test) don't replicate the real deal." Secondly, directly related to this is that the standard does not guarantee that a toilet will work, i.e., meeting the standard provides no assurance that the fixture functions in real life. Apparently all that meeting the standard means is that the water closet has passed a test, not that it works. But the point of the test is to determine if the fixture functions, otherwise why have a standard at all? From a consumer protection point of view, the Applicant argued that the CSA standard is not doing its job.

The Commission was informed by the Applicant that CSA is reviewing their CAN/CSA-B45.0 standard. As he elaborated, CSA is studying whether to establish a different grading system whereby toilets would be rated in terms of how well they performed on CSA's flush test. As well, CSA is investigating the value of creating use classifications for water closets. This system would indicate whether a toilet was suitable for institutional, commercial or residential and whether it was appropriate for high, medium or low usage. The Applicant stated that he thought such refinements to the standard would be quite helpful.

In response to a question from the panel, the Applicant admitted that he has tried only one type of six litre water closet. He countered, however, that as a consumer he does not have the resources to investigate all the toilets on the market to get one that works and is right for his uses. At the time he purchased the water closet he was assured by the plumbing supplier that he was buying the best. Besides, he should be able to have certainty that the current regulatory system ensures that the toilet he buys works. After all, buying a toilet should not be a crap shoot.

In answer to a question regarding whether he had installed six litre toilets with pressure assist devices, the Applicant said that he had not done so in his hotel, but had seen them elsewhere. He admitted that such devices work, but noted that they are expensive and are yet another device that must be maintained at additional cost. He also asserted that pressure assists are not appropriate for hotel uses because they are fairly loud and may cause disturbances for the guests.

The Applicant then turned his attention to the extensive amount of material he had gathered from numerous other individuals and organizations that supported him in his application to the BCC. The letters were from other hotels (some even offered their own service record showing many blocked toilet calls), hotel associations, seniors residences, sewer contractors, various engineers, homeowners and car dealerships. There were also supportive newspaper and magazine articles. All of this documentation essentially contained the same argument - that new six litre toilets do not work well and when replaced with 13 litre fixtures the blockage problems were eliminated.

One letter in particular the Applicant felt he wanted to highlight to the Commission was from the City of Ottawa. It discussed a situation where they converted the six litre toilets installed in 1998 in the new wing of the Centre d'accueil Champlain to 13 litre toilets. The letter stated:

"At that time, the Region requested these toilets be changed to a higher model (18 ? inches) to accommodate the needs of our elderly clients who were finding it difficult to transfer on and off our low toilets. We had also been experiencing problems with blockages and overflow spillage. Due to lack of funds, we had to wait until year 2000 to proceed.

"Sometime last year (2000), our plumbing contractor changed those 85 American Standards... to American Standards with a tank of 13 litres only because an 18 ? inches high toilet with a 6 litre tank was not available."

While the Applicant confirmed with technical advisors from the Ministry present at the hearing that such models are available, he argued that his point was the City, the entity responsible for OBC enforcement, also does not seem to support the use of six litre water closets. (As an aside, the Applicant noted that many of letters submitted on his behalf were seeking a Code amendment regarding the six litre flush. While he acknowledged that the BCC cannot amend the OBC, he nevertheless reiterated that all of the writers had negative experiences with the water closets currently permitted.)

The Applicant then discussed the specific Code reference directly. He offered two arguments concerning Article One, he noted that there are exemptions allowed in Sentence from utilizing six litre toilets in certain uses. These uses are heritage buildings, certain institutional facilities and passenger terminals. Except for heritage structures, the Applicant argued that the Sentence (2) exemptions are buildings where for health or high demand reasons a toilet must be counted on to flush every time and therefore a 13 litre fixture is permitted. The corollary of this is that in less critical uses such as residential, the Code allows, in fact requires, less than peak performance toilets in Sentence (3). The very existence of the exemptions is tantamount to an admission that six water closets are not entirely reliable, the Applicant insisted.

He followed this by arguing that because of the special circumstances of the hotel industry - guests are paying to use their residential space - that they should also be exempt. Their business depends on a quality accommodation and a backed up toilet can ruin that experience.

Having poorly performing toilets in every single newly built guest room is a definite hardship on the hotel industry, which is a very competitive business where even the slightest item can become an advantage, or in this case, a disadvantage. The very slight water conservation these toilets ostensibly offer has been gained at the expense of cost effectiveness due to high maintenance and potential lost revenue from unsatisfied customers.

In conclusion, the Applicant stated that if not all toilets are created equal, but the manufacturer nor CSA will indicate which ones are quality, then how can a consumer find out what is the best, or simply the appropriate water closet for their intended installation. He reiterated that he felt there is a problem with the testing procedures because they are not protecting the public. And lastly, he indicated that a grading system as well as a classification system would be very helpful.

6. Respondent's Position

The Respondent party chose not to attend the hearing. The Commission therefore relied only on their written submission.

In their supporting documents, the Respondent expressed a degree of sympathy toward the Applicant's position regarding six litre toilets. As they stated; "we acknowledge the concerns raised and your reluctance to install fixtures that have the potential to cause considerable disruption to your business and service to the public." They also thanked the Applicant for the investigation he carried out and for bringing the matter to them.

The Respondent submitted, however, that they have "no authority to approve the installation of fixtures other than those specified by the Ontario Building Code." They explained that, in their view, the intent of OBC is water conservation, an initiative undertaken by the provincial government. The Respondent noted that the National Plumbing Code has no parallel requirement.

Finally, they suggested that the Applicant apply to the BCC and stated that "the municipality would offer no objections to your submission (to the BCC), but would merely make a statement concerning our limited authority."

7. Commission Ruling

It is the decision of the Building Code Commission that the proposed use of 13.25 litre water closets in the new hotel addition provides sufficiency of compliance with Sentence of the Ontario Building Code on condition:

  1. That for each 13.25 litre toilet proposed to be installed in the new hotel wing in lieu of a six litre water closet, a 20 litre toilet in the existing portion of the building be removed and replaced with a 13.25 litre water closet; and,

  2. That the work described above, retrofitting water closets in the existing hotel, be completed prior to occupancy of the new wing.

8. Reasons

  1. Sentence and Table of the OBC address the requirements for water closets in new construction. As the standard for new construction, at six litres, is lower than for existing fixture retrofit, at 13.25 litres, it appears that this provision has two objectives. One, that new construction must meet a more rigorous standard than renovation, and two, that new buildings must achieve a higher level of water conservation. In the present circumstance, a new structure is being added onto an older facility. We hold that with fulfilment of the attached conditions, the overall water usage by all toilets in the entire building will be similar to that if the Applicant had installed six litre fixtures in the new wing. In this manner, the retrofit of an equal number of existing toilets will provide for water conservation as intended by OBC and thereby achieve appropriate compensation.

Dated at Toronto this 15th, day in the month of March, in the year 2001 for application number 2001-07.


Mr. Len King, Vice-Chair


Mr. Michael Steele


Mr. Fred Barkhouse