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BCC Ruling No. 00-51-783

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BUILDING CODE COMMISSION DECISION ON B.C.C. #00-51-783

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

AND IN THE MATTER OF Article 9.8.8.5. 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. David Burstein and Mina Battaglino, Owners, 16 Steele Valley Road, Thornhill, Ontario, for the resolution of a dispute with Mr. John Wright, Chief Building Official, Town of Markham, Ontario, to determine whether the as-built guards, comprised mainly of an ornamental floral design, provide sufficiency of compliance with Article 9.8.8.5. of the Ontario Building Code at 16 Steele Valley Road, Markham, Ontario.

APPLICANTS
Mr. David Burstein and Mina Battaglino, Owners
16 Steele Valley Road
Thornhill, Ontario

RESPONDENT
Mr. John Wright
Chief Building Official
Town of Markham

PANEL
Dr. Kenneth Peaker, Chair
Mr. Robert De Berardis
Mr. Donald Pratt

PLACE
Toronto, Ontario

DATE OF HEARING
October 19, 2000

DATE OF RULING
October 19, 2000

APPEARANCES
Mr. David Burstein, Owner
Markham, Ontario
The Applicant

Mr. Tony Boyko, Manager and Mr. Joe Holley, Building Inspector
Building Inspections
Town of Markham
Designates for the Respondent

RULING



1. The Applicant

Mr. David Burstein and Mina Battaglino, Owners, 16 Steele Valley Road, Thornhill, Ontario, have received an order to comply under the Building Code Act, 1992 to remedy certain alleged deficiencies regarding the design of a guard at 16 Steele Valley Road, Markham, Ontario.



2. Description of Construction

The Applicant has recently completed a renovation of his existing dwelling and as well has constructed an addition thereto. The building is described as a two storey, Group C - residential occupancy with a building area of approximately 300 m2.

The construction in dispute involves the as-constructed guards that have been installed in a stair that provides access between the basement, ground and second floor levels. The guard is comprised mainly of curving metal members designed in an ornamental floral pattern. The metal members predominantly run vertically, however, most also contain a loop as part of the pattern. Supporting these members at the bottom of the guard are two parallel horizontal (except on the stairs) metal rails fixed approximately 100 and 200 mm above the walking surface. The guard is topped with wood handrails that are fastened to either newel posts or walls and that sit directly on top of the looping portion of the metal members.

Besides being located directly on either side of the flights within the stair, the subject guard has also been installed in other areas within the stairwell. This includes at the second floor to separate a corridor/hallway from the stairwell and at the landing between the first and second floors to separate the stair from a bay window.



3. Dispute

The issue at dispute between the Applicant and Respondent is whether the as-built guards, comprised mainly of an ornamental floral design, provide sufficiency of compliance with Article 9.8.8.5. of the Ontario Building Code at 16 Steele Valley Road, Markham, Ontario.

This provision stipulates that required guards 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. The issue at dispute is whether the guards, as designed and constructed, facilitate climbing.



4. Provisions of the Ontario Building Code

Article 9.8.8.5. Design to Prevent Climbing

  1. Guards required by Article 9.8.8.1. and serving buildings of residential occupancy shall be designed so that no member, attachment or opening located between 100 mm (4 in) and 900 mm (2 ft 11 in) above the floor or walking surface protected by the guard will facilitate climbing.



5. Applicant's Position

The Applicant submitted that he takes pride in his house, and because of this he and his family were interested in a more decorative guard for their stairs. As a result, the ornamental floral design was chosen. However, in doing so he would never put the safety of his family at risk. He argued that the subject guards are neither climbable nor hazardous. In his view, they meet the intent of the guard requirements of the Building Code in that they assist persons in getting up and down the stairs and prevent them from falling over the side at any point in the stairwell.

He noted, nevertheless, that it is impossible to regulate one hundred per cent safety. Users of stairs have to take responsibility for how they use them. And in the case of children who might not be fully aware of the potential dangers, their parents have the responsibility of looking out for them.

The Applicant explained that he has seen numerous other homes in the Toronto area that have had these and other similar types of guards installed. He indicated that there are various manufacturers selling such products throughout the Toronto market. To illustrate his argument, the Applicant showed an article from a magazine and pictures from homes he recently visited, all of which contained ornamental metal guards employing a floral pattern. If such products are being sold and installed so widely, how is it possible they do not meet Code, he inquired.

Moreover, the Applicant expressed frustration that standards found in the Ontario Building Code were not being applied and enforced equally across the province and even within his own municipality. He argued that one standard should be applicable to the whole of Ontario. But in this case, he felt like he was being singled out.

jn summation, the Applicant stated that inspections conducted earlier in the project should have identified this issue. Further, the extent of the problem was not made known to him until the guards were fully built. He indicated that the option of installing plexiglass on the inner side of the guard did not appeal to him. And besides, he felt it to be unnecessary. He concluded by stating he is very satisfied with the safety of the guards and by reiterating that people have a responsibility for their actions, including using stairs safely.



6. Respondent's Position

The Respondent submitted that the as-built guards contain members between the height of 100 to 900 mm above the walking surface that are climabable, and as a result are not in compliance with Article 9.8.8.5. They noted that, in their estimation, some of the ornamental metal members are curved to such an extent that a ladder effect is created. As well, the upper of the two horizontal rails near the bottom of the guard is well within the 100 to 900 mm range. This rail, at approximately 800 mm above the walking surface, is a tempting step in terms of climbing the guard, they argued.

The Respondent rejected the Applicant's claim that the level of service regarding inspections was inadequate.

The Respondent concluded by stating that things in magazines are not always Code compliant and that they cannot speak to the issue of Code enforcement in other municipalities. They noted that the subject hearing concerned the guards at the Applicant's house, which they believe do not meet Code. As such, they stand by the Order issued. In their view the guard is climbable.

7. Commission Ruling

It is the decision of the Building Code Commission that the as-built guards comprised mainly of an ornamental floral design do not provide sufficiency of compliance with Article 9.8.8.5. of the Ontario Building Code at 16 Steele Valley Road, Markham, Ontario.

8. Reasons

i. We hold that the guard, as constructed, with its ornamental, looping floral pattern is considered to facilitate climbing, and as a result does not comply with Sentence 9.8.8.5.(1).

ii. No compensating measures were provided to mitigate the climbable nature of the guard's design.



Dated at Toronto this 19th day in the month of October in the year 2000 for application number 2000-61.





__________________________________________________________

Dr. Kenneth Peaker, Chair



__________________________________________________________

Mr. Robert De Berardis



__________________________________________________________

Mr. Donald Pratt