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BCC Ruling No. 99-17-673

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

AND IN THE MATTER OF Sentence of Regulation 403, as amended by O. Reg. 22/98, 102/98 and 122/98 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Mr. Bill Koppens, Homeowner, 6596 Highway # 9, Schomberg, Ontario, for the resolution of a dispute with Mr. John Miller, Chief Building Official, Town of New Tecumseth, Ontario to determine whether a portion of a basement foundation wall and the patio retaining walls, as constructed, complies with Sentence and the structural requirements of Part 4 respectively of the Ontario Building Code at the Koppens' residence, 6596 Highway No. 9, Schomberg, Ontario.


Mr. Bill Koppens
Schomberg, Ontario


Mr. John Miller
Chief Building Official
Town of New Tecumseth


Mr. Roy Philippe (Chair)
Mr. Robert De Berardis
Mr. James Lischkoff


Toronto, Ontario


March 24, 1999


March 24, 1999


Mr. Bill Koppens
Schomberg, Ontario
Agent for the Applicant

Mr. John Miller
Chief Building Official
Town of New Tecumseth
For the Respondent


  1. The Applicant

Mr. Bill Koppens, homeowner, Schomberg, Ontario, was issued an order to comply under the Building Code Act, 1992 regarding certain work undertaken at his residence specifically pertaining to the excavation of soil, insulation installed on a portion of the basement foundation wall, the erection of a patio retaining wall and the enclosure of the patio at 6596 Highway No. 9, Schomberg, Ontario.

  1. Description of Construction

As part of other alterations being carried out at the Applicant's single storey, Group C - residential occupancy, an existing enclosed below grade basement entrance was renovated by adding a new enclosed walkout patio.

The construction in dispute entailed excavating the soil backfilled against the eastern half of the north face of the basement foundation wall so that repair work could be conducted on a portion of the subject foundation wall, including footings, adjacent to either side of the existing basement door which had been damaged due to frost. The applicant stated that rigid 50 mm (2 in) Styrofoam SM insulation was then extended 915 mm (3 ft) vertically below into the soil on the same plane as the foundation wall.

The work also involved the creation of a basement level concrete slab walkout patio approximately 6.1 m (20 ft) in width at the rear, or north-east corner, of the house that roughly centred around the subject basement door. The applicant stated that styrofoam (50 mm) insulation was also installed horizontally across the width of the patio under the concrete slab extending approximately 1,200 mm (3 ft, 11 in) from the foundation wall.

Retaining walls, much of which exceed 1,000 mm (3 ft, 3 in) in exposed height (1,200 mm at their highest points), were constructed on either side of the subject patio. The new retaining walls have footings 1,200 mm deeper than the previous retaining wall footings. The east retaining wall in particular separates the patio from an adjacent driveway. The trenches for the retaining walls were dug below the level of the footings for the house foundation wall. The exterior of the retaining walls were also lined with 50 mm Styrofoam insulation. The patio was then completely enclosed with a fibreglass roof and steel and glass partition walls. The enclosure is considered unconditioned space.

The above described work was not included in the building permit application nor was it inspected until after it was constructed.

  1. Dispute

The issue at dispute between the Applicant and Respondent is whether the foundation wall, including the insulation, and the patio retaining walls were built in accordance with Sentence and Part 4 respectively of the Ontario Building Code. Sentence sets out the minimum depth of foundations required in certain types of soils to ensure that, in part, protection from frost is provided. For the subject building the foundation depth required is 1,200 mm. The patio concrete slab, however, is located at approximately the same depth as the footings, thus making the footings potentially vulnerable to frost damage. Frost protection for the footing is therefore required below the patio where the foundation was exposed.

The issue regarding the retaining walls is that since much of the length of the wall is higher than 1 m and is adjacent to access to a building, they are therefore considered designated structures under the OBC. Further, because the trenches for the retaining wall were excavated below the level of the foundation footing, the wall, as built, extends into the angle of repose of the existing footing. Part 2 of the OBC requires a professional engineer to design work of this nature.

The work on both the foundation and retaining walls were covered before the municipality could inspect the work.

  1. Provisions of the Ontario Building Code

Sentence Minimum Depth of Foundations

(1) Except as provided in Sentences (4) and (5), the minimum depth of foundations below finished ground level shall conform to Table

  1. Applicant's Position

The Applicant submitted that work done on the foundation wall and the construction of the two retaining walls complied with Sentence and Part 4 of the OBC.

Regarding the foundation footings, he argued that the reason that patio with its retaining walls was created was to repair frost damage to the basement foundation footings that had occurred due to the previous poorly constructed basement entrance. For this reason, the Applicant stated that he was careful to ensure that the new work would prevent such frost related problems from occurring. The horizontal and vertical insulation placed under the patio slab and extending downward and in front of the footing will more than adequately protect the footing from frost damage, he argued. Further, the glass and steel enclosure will protect the slab and the footings from moisture.

The Applicant submitted letters from a contractor (who visited the site but was not involved in the actual work) and from an engineer known to this contractor that indicated that the insulation method was adequate. The engineer added, however, that the basement must be heated to a minimum temperature of five to six degrees Celsius (45o F) in order so that the soil directly below the basement does not freeze. The Applicant indicated that the engineer had not been professionally retained to inspect the work or approve of its design.

On the subject of the retaining walls, the Applicant also pointed to the letter from the contractor indicating that they were constructed in a manner more than sufficient to meet Code. He submitted photographs of the construction of the retaining walls. The Applicant also added that under OBC Article the patio slab could be viewed as providing lateral support to both retaining walls from the interior countering the soil pressure outside of the patio walls.

In general, he argued that the performance level of the foundation, including footings, and the retaining wall was not reduced and was, in fact, improved.

Lastly, the Applicant indicated that he believed that the scope of the work done on the patio was covered by the existing building permit. Further, he argued that the inspector had not indicated that he should cease work and that the Order to Comply did not get issued until two weeks later. By which point the work had been completed.

  1. Respondent's Position

The Respondent submitted that they were unsure as to whether the disputed constructed undertaken complied with the OBC since the work was not included on the building permit and much of it was done without inspection. As he stated, there was nothing in the permit application to indicate that a 6.1 m enclosed patio sided by two roughly 1 m high retaining walls was proposed. He indicated that he had concerns with the method of frost protection and that no underpinning of the existing foundation was done when the retaining walls were built extending into the angle of repose of the foundation. The Respondent indicated that he had been requesting a report from a professional engineer to verify that the foundation and retaining wall work met good engineering practice. He indicated that such a report would still satisfy his concerns.

  1. Commission Ruling

It is the decision of the Building Code Commission that the patio foundation and retaining wall and a portion of the basement foundation wall as constructed provides sufficiency of compliance with Sentence and the structural requirements of

Part 4 of the Building Code provided that:

i) a licensed professional engineer is engaged to review the as constructed conditions and certify that the noted code references are complied with.

  1. Reasons

i. Although numerous photographs, letters and sketches were presented as evidence, the information was considered incomplete.

ii. ii) The municipality has outlined the willingness to accept an engineers report in correspondence dated December 21, 1998 to satisfy the remaining issues.

Dated at Toronto this 24th day in the month of March in the year 1999 for application number 1998-71.

Mr. Roy Philippe, Chair