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BCC Ruling No. 00-23-755

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BUILDING CODE COMMISSION DECISION ON B.C.C. No. 00-23-755

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

AND IN THE MATTER OF Articles 1.1.3.2. and 3.1.2.5. 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. Carlos Goncalves, President, Westhaven Homes Inc., London, Ontario, for the resolution of a dispute with Mr. R. Cerminara, Chief Building Official, City of London, to determine whether the intended use of the proposed building, as a home for ambulatory individuals with disabilities, complies with the definition of "Residential Occupancy" as set out in Article 1.1.3.2. of the Ontario Building Code (OBC) and, if not, whether the structure meets the conditions that would permit it to be classified as a residential occupancy under OBC 3.1.2.5. at Westhaven Homes Residence, Lot 19, 1832 Louise Boulevard, London, Ontario.

APPLICANT
Mr. Carlos Goncalves, President
Westhaven Homes Inc.
London, Ontario

RESPONDENT
Mr. Rocky Cerminara
Chief Building Official
City of London

PANEL
Dr. Kenneth Peaker (Chair-Designate)
Mr. Fred Barkhouse
Mr. John Guthrie

PLACE
Toronto, Ontario

DATE OF HEARING
May 25th, 2000

DATE OF RULING
May 25th, 2000

APPEARANCES
Mr. Randy Wilson
Randy Wilson Architect
London, Ontario
Agent for the Applicant

Mr. Gary Edwards
Chief Plan Examiner
City of London
Designate for the Respondent

RULING

1. The Applicant

Mr. Carlos Goncalves, President, Westhaven Homes Inc., 60 North Centre Road, London, Ontario, has applied for a building permit under the Building Code Act, 1992 to construct a new building for operation by Participation House Support Services, at Lot 19, 1832 Louise Boulevard, London, Ontario.

2. Description of Construction

The Applicant is proposing to construct a new building intended to be owned and run by Participation House Support Services, an agency whose mandate is to provide services to persons with diminished mental and/or physical capacities. The building would provide accommodation for four individuals described by the Applicant as "ambulatory persons with disabilities." The structure would be one storey in building height, 180 m2 in building area and of combustible construction. The building is proposed to be constructed as a single detached, four bedroom dwelling in accordance with Part 9 of the OBC. It is to be equipped with a fire alarm system, but not a sprinkler system.

The construction in dispute involves the occupancy classification of the subject structure and therefore, the Code requirements to be applied in the design and construction of the building. The Applicant purports that the use of the building falls under the definition of a Group C residential occupancy while the Respondent asserts that the classification is more appropriately defined as a Group B, Division 3 care occupancy.

3. Dispute

There are potentially two issues at dispute between the Applicant and Respondent. The principal dispute between the parties is whether the intended use of the proposed building, as a home for ambulatory individuals with disabilities, complies with the definition of "Residential Occupancy" as set out in Article 1.1.3.2. of the Ontario Building Code at the subject location. The latter dispute is dependent on the outcome of the main issue. If it is ruled that the subject building is a B3 occupancy, then the secondary question is whether it conforms to the conditions in Article 3.1.2.5. and thus can be considered as a residential occupancy.

As the chief dispute pertains to the occupancy of a building, specifically which OBC category is applicable, it is appropriate to examine the occupancies to which the parties argue that the subject building belongs. The Applicant has stated it is his belief that the proposed facility should be classified as residential. "Residential Occupancy" is defined in Article 1.1.3.2. of the OBC as the use of a building where sleeping accommodation is provided but where occupants are not harboured or detained involuntary or otherwise to receive medical care or treatment.

The Respondent, on the other hand, disputed the application of "Residential Occupancy" and indicated that the definition in Article 1.1.3.2 that most appropriately describes the use of the building is "Care Occupancy" (Group B, Division 3). This occupancy would include persons receiving special or supervisory care because of cognitive or physical limitations, but does not include a dwelling unit. Dwelling unit is also a defined term in the Code. This definition is set out in the following section. Significant for our purposes, however, is that a dwelling unit is a space used as a domicile and is operated as a "housekeeping unit".

The nature of this dispute is fundamental for the construction of the building. Indeed, whereas the Ontario Building Code is a document that regulates physical structures and not human behaviour and activity, occupancy and use is nevertheless at the root of appropriate construction. Therefore, in order to correctly prescribe building regulations for a structure, how persons intend to use that structure and what its function will be must be determined. To a large degree, the use and purpose of a building dictate its associated hazard and thus the risk to the occupants. The varying levels of construction standards in the OBC are, in turn, based partially on the potential hazards inherent with certain uses.

Occupancy classification then is an essential step in determining the construction requirements for a building. In this regard, the OBC requires that all buildings be classified "in accordance with every major occupancy for which the building is used or intended to be used." (A-3.1.2. Use Classification) For a proposed building, therefore, occupancy categories are based on intended use of the structure. The Applicant has indicated the following about the intended use of the building:

The building in question is to be used by ambulatory individuals with disabilities and will be operated by Participation House Support Services under the direction of the Ministry of Community and Social Services. According to the Applicant, the building, designed as a four bedroom, single detached dwelling is intended to look as compatible as possible with the neighbourhood in which it is situated. In this manner, the main design objective is to achieve a typical residential setting for the occupants. The Applicant has also indicated that the residents would not be harboured or detained in any way. No reference was made, however, to the type or level of care or supervision that may be provided by the operator, if such care or supervision is to exist.

Upon analysis of the above definitions, the BCC begins with the premise that residential occupancies are comprised of one or more dwelling units. From this basic assumption, it is possible to see the definition of residential and care (B3) occupancies as attempting to be mutually exclusive of one another within the OBC. To elaborate, as we have assumed, a residential occupancy must contain (a) dwelling unit(s). Moreover, a residential occupancy must not contain persons "harboured or detained to receive medical care or treatment...". In contrast, a care occupancy contains persons that receive "special or supervisory care because of cognitive or physical limitations...". As well, it specifically does not include a dwelling unit.

As stated in the Technical Background Information memo written for this application by the Housing Development and Buildings Branch of the Ministry of Municipal Affairs and Housing:

"Within these definitions, the Code draws a distinction between occupancies containing sheltered occupants who receive special care or supervision and those occupancies containing persons who exercise independent control over their accommodation."

The BCC agrees with this assessment. We hold that the receipt of special or supervisory care or the lack thereof, and the degree of independent control exercised within the accommodation are the principal distinctions between residential and care occupancies.

To reach a classification then of the proposal, it is necessary to employ certain tests that will provide a determination. Based on the above described distinctions between Group C and B3 occupancies, the relevant tests are:

1) Will the occupants of the proposed building receive care? And;

2) Will the occupants reside in a dwelling unit operating as a housekeeping unit (which infers that occupants are able to exercise a degree of control over their suite) to receive such care?

If the answer to the first question is no, the occupancy should be considered residential. However, if the answer to the first is yes, then the second test must be applied. If the latter question receives an affirmative response, the occupancy is still likely Group C. If it is not considered a dwelling unit, however, the occupancy is most appropriately described as B3. On this basis and using this approach, the BCC will examine the evidence.

If, after occupancy is determined, the proposed structure is a B3 occupancy, the BCC must then address the secondary question regarding whether the proposed building meets the conditions set out in Article 3.1.2.5. This provision permits, under certain conditions, that some B3 occupancies may be classified and constructed as residential occupancies. The conditions are that the occupants must operate as a single housekeeping unit, that there is sleeping accommodation for no more than ten persons and that no more than two persons would require assistance to evacuate in case of an emergency. The Applicant has indicated that there would be a total of four "ambulatory persons with disabilities" housed in the structure, however, no specifics were available with respect to the nature of the resident's disabilities. It is also not clear whether the occupants will function as a housekeeping unit.

4. Provisions of the Ontario Building Code

Article 1.1.3.2. Defined Terms

(1) The words and terms in italics in this Code have the following meaning for the purposes of this Code, and where indicated, the following meaning for the purposes of the Act as well.

Care Occupancy (group B, Division 3) means an occupancy in which persons receive special or supervisory care because of cognitive or physical limitations, but does not include a dwelling unit.

Dwelling Unit means a suite operated as a housekeeping unit, used or intended to be used as a domicile by 1 or more persons and usually containing cooking, eating, living, sleeping and sanitary facilities.

Residential Occupancy means the occupancy or use of a building or part thereof by persons for whom sleeping accommodation is provided but who are not harboured or detained to receive medical care or treatment or are not involuntarily detained.

Article 3.1.2.5. Group B, Division 3 Occupancies

(1) Group B, Division 3 occupancies are permitted to be classified as Group C major
occupancies provided:

a) the occupants live as a single housekeeping unit in a dwelling unit with sleeping accommodation for not more than 10 persons, and

b) not more than 2 occupants require assistance in evacuation in case of an emergency.

Article 9.10.2.2. Custodial and Convalescent Homes

1) Children's custodial and convalescent homes for ambulatory occupants living as a single housekeeping unit in a dwelling unit with sleeping accommodation for not more than 10 persons is permitted to be classified as residential occupancies.

5. Applicant's Position

The Agent for the Applicant submitted that the main issue involves a question of interpretation. He suggested that the classification of a building is the first and most important step in the application of the Building Code. In his opinion, there is no question that the intended use of this building meets the definition of "Residential Occupancy" outlined in Article 1.1.3.2. of the Code. As a result, he submitted that, under Sentence 2.1.1.3.(1) of the OBC, the Part 9 construction requirements, and not those in Part 3, should apply.

In support of his opinion, the Agent submitted that the operators have confirmed that they do not harbour or detain individuals for care or treatment. Instead, Participation House Support Services will provide housing for ambulatory individuals with disabilities in a residential "home" environment as opposed to an institutional setting. The Agent submitted that "(t)he residential setting must model as close as possible a typical home environment. This direction is supported by the Ministry of Community and Social Services and Ministry of Health policy directions for community integration and de-institutionalization." As a result of this directive, the building will be located in a residential neighbourhood and has been designed as a four bedroom, one storey, single detached dwelling, using the Code requirements found in Part 9 of the OBC.

In terms of the occupants of the dwelling, the Agent noted the residents are free to come and go as they please. Their freedom is restricted only by the measure of assistance that they may require. Moreover, there are no written guidelines or restrictions to dictate the nature of the disability an individual may have. In addition, the Agent advised that the house will not be staffed by nurses nor are the residents intended to be supervised. There will, however, be a 24 hour staff on site that may provide assistance when required.

The Agent concluded by stating that there is no compelling reason to link this building with a Group B, Division 3 use. The definition of "Residential Occupancy", as outlined by the Code, is applicable to every facet of this proposal. In addition, he advised that it was not necessary to refer to the provisions of Article 3.1.2.5. of the Code, that outline the requirements that would permit a Group B, Division 3 occupancy to be classified as a Group C occupancy. The use of this building already clearly conforms to the residential occupancy classification and no further consideration should be required. However, if the Commission were to conclude that the building is classified as B3, they meet the criteria specified in Article 3.1.2.5., he argued.

6. Respondent's Position

The Respondent submitted that, although a residential home is being built by Westhaven Homes Inc., it will be sold to and operated by Participation House Support Services, "a care provider under the direction of the Ministry of Community and Social Services." This operation involves some form of care for the occupants and, as a result, "the code requires the building to be designed to the most restrictive classification." In this regard, he has considered it to be a Group B, Division 3 care occupancy when considering the definitions listed in Article 1.1.3.2.

As a B3 occupancy, the Respondent then considered the building under Article 3.1.2.5. of the OBC. This would permit a B3 occupancy to be considered as a Group C occupancy, provided that; a) the occupants live as a single house keeping unit, b) sleeping accommodation is limited to 10 persons and, c) not more than two persons require evacuation assistance. The Respondent advised that not enough information was available for them to accurately assess whether those conditions were met in this instance. They contended therefore that the classification remains as a B3 care occupancy. This classification would provide the appropriate level of life safety to the occupants of the building.

The Respondent raised several additional issues for consideration, including, the applicability of prior court rulings on similar cases; lack of control over the future occupants of the building and the nature of their disabilities, and; lack of information available to the Applicant from the care operator and, in turn, the Respondent in respect to the level of assistance required by the occupants and level of care to be provided at the facility.

The Respondent acknowledged that the construction requirements for a B3 occupancy are more onerous, specifically the building must be sprinklered and provided with upgraded fire separations. It was suggested that it may be appropriate for the Commission to recommend a Minister's Ruling that would allow an owner to forego the fire separation requirements for a Group B, Division 3 occupancy, provided that such buildings have a maximum building area of 200 m2, a maximum occupancy of 10 persons, full sprinklering and a fire alarm system. The Respondent noted that there is no requirement in the OBC for a fire alarm system in a B3 occupancy containing not more than 10 persons.

In summation, the Respondent argued that their position remains that the building is most appropriately defined as containing a Group B, Division 3 care occupancy. This position is based on the nature of the operation and the known service offered, the potential limitations of the occupants of the building, and the lack of information available to reach any alternative conclusion.

7. Commission Ruling

The following are the decisions of the Building Code Commission regarding the Westhaven Homes Residence, Lot 19, 1832 Louise Boulevard, London, Ontario:

i. The intended use of the proposed building, as a home for ambulatory individuals with disabilities does not comply with the definition of "Residential Occupancy" as set out in Article 1.1.3.2. of the Ontario Building Code, and, as a result, the Care, or B3, occupancy is considered the most appropriate classification; and further,

ii. The proposed structure fails to meet the conditions set out in OBC Article 3.1.2.5. and therefore is not permitted to be classified as residential.

8. Reasons

Re: Determination Between Groups C and B3 Occupancies

  1. The proposed occupancy is not considered residential because care is to be provided to the occupants. At least one staff person will be available to provide assistance, if necessary, 24 hours a day.

  1. The building will be operated as a non-profit business providing services for the rehabilitation of patients. Since the occupants will require and receive supervisory care from the operator, the building should be classified as a care occupancy.

  1. The occupants will seem to have less control or influence over their environment within the proposed building as would persons owning, renting or simply occupying a house, an apartment or a condominium unit. The future occupants are to be residents in a facility where care is provided. The living arrangement therefore cannot be considered as a housekeeping unit. Operating as a housekeeping unit is essential for a suite to be considered as a dwelling unit and thereby a residential occupancy.

Re: Application of Article 3.1.2.5.

  1. The evidence presented did not indicate that the operator of the facility could guarantee over the long term use of the building that no more than two persons would require assistance in the event of an emergency evacuation.

  1. As stated in reason "c" above, the occupants will not operate as a housekeeping unit.



Dated at Toronto this 25th day in the month of May in the year 2000 for application number 2000-26.









_________________________________________________________________

Dr. Kenneth Peaker, Chair





_________________________________________________________________

Mr. John Guthrie





_________________________________________________________________

Mr. Fred Barkhouse