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BCC Ruling No. 00-45-777

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


AND IN THE MATTER OF Articles and of Regulation 419/86, as amended by O. Reg. 183/88, 581/88, 114/89, and 115/89 of the 1986 Ontario Building Code.


AND IN THE MATTER OF an application by Mr. and Mrs. William McGuigan, 15995 Horseshoe Hill Road, Caledon, Ontario, for the resolution of a dispute with Ms. Mary Schofield, Deputy Chief Building Official, Town of Caledon, Ontario, to determine whether the as-built guard provides sufficiency of compliance with Articles and of the 1986 Ontario Building Code at the McGuigan Residence, 15995 Horseshoe Hill Road, Caledon, Ontario.


Mr. and Mrs. William McGuigan
Caledon, Ontario


Ms. Mary Schofield
Deputy Chief Building Official
Town of Caledon


Mr. Len King, Vice- Chair
Mr. Fred Barkhouse
Mr. John Guthrie


Toronto, Ontario


September 7th, 2000


September 7th, 2000


Mr. Alexander Temporale, Principal
ATA Architect Inc.
Oakville, Ontario
Agent for the Applicant


Mr. Laszlo Pandy
Barrister and Solicitor
Brampton, Ontario
Designate for the Respondent



1. The Applicants


Mr. and Mrs. William McGuigan, owners, Caledon, Ontario, have received a building permit under the Building Code Act, 1986 and have constructed a residential building at 15995 Horseshoe Hill Road, Caledon, Ontario.


2. Description of Construction


The Applicants applied for a building permit in 1990 and thereafter constructed a custom two storey, detached dwelling.


The construction in dispute involves the design of the guard protecting exterior balconies. The guard is comprised entirely of welded 51 mm diameter tubular steel. The design consists of five parallel horizontal members spaced evenly apart with 178 mm between the top of one rail and the underside of the one above. The upper side of the lowest rail is measured at 152 mm above the balcony walking surface, whereas the upper side of the top rail, i.e. the total height of the guard, is 1,070 mm high. The horizontal members are supported by vertical posts located at 1,422 mm on centre. The horizontal distance between the vertical posts is 1,372 mm.


The guard is employed in a few locations on the exterior of the house. On the ground floor, a considerable distance of the guard has been installed, including around a semi-circular porch that overlooks a sunken patio located on the same level as the basement. There is also a small portion of the same guard on the second floor that protects a walkout balcony.


3. Dispute


The issue at dispute between the Applicant and Respondent is whether the as-built exterior guard provides sufficiency of compliance with Articles and of the 1986 Ontario Building Code. (As the permit to construct the house was applied for in March of 1990, the applicable regulation at that time was the 1986 Ontario Building Code.)


The first provision, Article, requires that openings in guards on balconies or exit stairs of residential occupancies be of size that prevent passage of a spherical object having a diameter of 100 mm. The guard under dispute has openings as measured between the horizontal and vertical members of 178 by 1,372 mm respectively.


Article, the latter provision, stipulates that required guards surrounding exterior balconies must be designed in such a way so as not to facilitate climbing between 100 and 900 mm above the floor or walking surface of the area the guard is protecting. In the subject guard there are four horizontal members located between the 100 and 900 mm range above the balcony surface.


The issue at dispute therefore is whether the guard, as designed and constructed, has openings large enough to allow a spherical object with a diameter of 100 m to pass through and whether it facilitates climbing.


4. Provisions of the Ontario Building Code


Article Openings in Guards


Openings through a guard on a balcony or an exit stair, except an exit stair serving not more than 1 dwelling unit, shall be of size so as to prevent the passage of a spherical object having a diameter of 100 mm in residential occupancies and 200 mm in other occupancies, unless it can be shown that the location and size of such openings which exceed these limits do not represent a hazard.


Article Design to Prevent Climbing


Guards around exterior balconies of buildings of residential occupancy shall be designed so that no member, attachment or opening located between 100 mm and 900 mm above the balcony floor will facilitate climbing.



5. Applicant's Position


At the outset, the Agent for the Applicant submitted that when considering the size of the balconies, their locations and the use of the house, the design of the guard is very safe. He argued that the openings and the alleged climbability have never been an issue. He noted that in all the years the owners have lived there no incident related to the guards has occurred.


The Agent explained that after living in their completed house for eight to nine years the owners realized that they never received their final inspection from the municipality. When this inspection occurred in 1999 the municipality took issue with the design of the guards. He stated that the design of the exterior balcony guard is the same as the one that appeared in the original drawings submitted for the building permit and approved by the Town of Caledon. Neither in the building permit approval process, nor during the inspections carried out later was there any indication from the municipality that the design of the subject guards did not comply with the Ontario Building Code.


The Agent also elaborated that the architecture of the house was based on Frank Lloyd Wright's prairie school design where the dominating theme is to create a horizontal linear sense. It was upon this concept that the horizontal rails of the guard were predicated. As he noted, in a house in which the overwhelming aesthetic is to reference the linear flatness of a prairie horizon, to add vertical pickets in the guards would be incongruous.


The Agent continued that guards comprised of several horizontal rails have been employed in many locations inside and outside Ontario. Of the examples of guards in Ontario, he cited specifically a bridge at Bronte Park in Caledon East and Ontario Place, both of which are used by the public.


The subject house has been designed as a country home for adult use, the Agent stated. It is not used by the wider public as it is a private residence. The house and its guards therefore receive constant supervision when guests are present, especially children. Taking these facts into account and considering that during the last eight years of occupancy there has been no incident connected to the guards under dispute, the Agent concluded that there is no danger associated with the openings and horizontal members of the subject guards.


Finally, the Agent suggested that they would be prepared to restrict the access to the subject balconies if it allows them to maintain the guards as they are. He hoped that the Commission would take a reasonable approach when deliberating on the safety of the guards.


6. Respondent's Position


The Designate for the Respondent submitted that the exterior balcony guards, as constructed and installed, do not conform with the requirements of the 1986 Ontario Building Code.


The Designate stated that at the time the drawings (showing the disputed guards) were submitted for the building permit they were clearly stamped in red, requiring compliance with the provisions of the OBC. Moreover, during the subsequent inspections of the house throughout its construction the guards were not inspected and declared non-compliant because they had not been installed.


The argument that the subject guards are acceptable because similar ones have been installed elsewhere was rejected by the Designate. He noted that the Agent used some examples from outside Ontario which are obviously not subject to the OBC. Also not covered by the OBC is the bridge structure. Further, Ontario Place is not a residential structure regulated under Part 9 of the Code, as is the Applicant's house.


The Designate also refuted the argument that the use of the house primarily by adults eliminates any potential hazard. That this is fact provides no basis for deviating from the Code. The OBC, he noted, does not have standards for guard design for houses with adults only and houses with adults and children. There is only a single standard for Part 9 construction. And the guard does not meet the requirements in two areas; the openings are far too large and the horizontal rails make it very climbable.


On the fist issue, the Designate stated that the test in Article is that "unless" an opening larger than 100 mm in diameter can be shown not to be a hazard then it cannot be allowed. The openings are many times the size permitted, the vertical drop between the balconies and the adjacent grade is significant and the Agent has demonstrated nothing to prove that such openings are not a hazard. As a result, the guard has not met the "unless" test in OBC


Regarding climbability, the Designate discussed that Article hinges on whether the guard "facilitates climbing". With regularly spaced horizontal rails, the guard looks exactly like a ladder. Clearly, such a design facilitates climbing, he asserted.


The Designate concluded by pointing out that the Applicants and their Agent are offering to restrict access to the disputed guards and balconies. By doing so, he argued that they are admitting that the guards are a hazard because they are trying to keep people away from them. Moreover, restricting access to an area of a building is also not a reason to justify a deviation from the minimum safety requirements of the Ontario Building Code. Lastly, he stated that this is a required guard and it must be built according to Code.


7. Commission Ruling


It is the decision of the Building Code Commission that the as-built exterior guards do not provide sufficiency of compliance with Articles and of the 1986 Ontario Building Code at the McGuigan Residence, 15995 Horseshoe Hill Road, Caledon, Ontario.


8. Reasons


  • The subject guards, with their horizontal members, create a clear ladder effect and are therefore considered as facilitating climbing.

  • The openings are well in excess of the 100 mm diameter threshold. In fact, they are large enough to allow a small child to pass through.


Dated at Toronto this 7th day in the month of September in the year 2000 for application number 2000-46.


Mr. Len King, Vice-Chair


Mr. Fred Barkhouse


Mr. John Guthrie