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BCC Ruling No. 99-21-677

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

AND IN THE MATTER OF Sentence and Article 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. Rick Lovekin, 1220351 Ontario Ltd., R.R. # 5, 263 Hoskin Road, Cobourg, Ontario, for the resolution of a dispute with Mr. Frank Lukes, Chief Building Official, Town of Cobourg, Ontario to determine whether the modified guard with a total height of 915 mm, consisting of a single steel rail supported by posts located approximately every 1,200 mm constructed upon the original (610 mm in height) historic iron lattice and wood guard, provides sufficiency of compliance with Sentence and Article of the Ontario Building Code at the condominium residences at 18 Chaple Street, Cobourg, Ontario.


Mr. Rick Lovekin
1220351 Ontario Ltd.
Cobourg, Ontario


Mr. Frank Lukes
Chief Building Official
Town of Cobourg


Mr. Roy Philippe (Chair)
Mr. Michael Steele
Mr. Kenneth Peaker


Toronto, Ontario


April 8, 1999


April 8, 1999


Mr. James Doubt
J.E. Doubt and Associates
Cobourg, Ontario
Agent for the Applicant

Mr. Frank Lukes
Chief Building Official
Town of Cobourg
The Respondent


  1. The Applicant

Mr. Rick Lovekin, 1220351 Ontario Ltd., received a building permit under the Building Code Act, 1992 to renovate a nineteenth century schoolhouse by converting it into several residential condominium units at 18 Chaple Street, Cobourg, Ontario.

  1. Description of Construction

The Applicant has recently renovated a two storey, 1883 Victorian schoolhouse by adding several condominium units. The Group C - residential structure with a building area of 300 m2, is described as combustible construction and is equipped with a fire alarm system.

The construction in dispute concerns a guard separating a loft containing a bedroom and a washroom 9 ft above the ground floor in two of the second storey units. The guard consists of two parts, an original historic lower level and a recently added steel post and rail upper level. The lower portion is composed of a wood guard that also acts as a frame for panels of iron lattice and has a total height of 610 mm. The upper portion, recently added to achieve compliance with the current standards under the OBC, is composed of a single 50 mm diameter steel rail supported at a height of approximately 250 mm above the lower guard by upright posts located roughly every 1,200 mm. The combined total height of both the upper and lower portions of the modified guard is 915 mm. All of the area beneath the horizontal rail and between the vertical posts is open to the floor area below.

  1. Dispute

The issue at dispute between the Applicant and Respondent is whether the modified historic guard, as constructed, provides sufficiency of compliance with Sentence and Article of the Ontario Building Code. These provisions stipulate that the openings in a required guard cannot exceed 100 mm unless it can be demonstrated that the subject openings do not represent a hazard and that no climbable elements be placed be placed between 100 and 900 mm above the floor respectively. The openings below the horizontal rail and the vertical posts far exceed 100 mm and the iron lattice as well as the top of the lower, original guard could facilitate climbing.

  1. Provisions of the Ontario Building Code

Sentence Openings in Guards

(1) Except as provided in Sentence (2), openings through any guard which is required by Article shall be of a size which will prevent the passage of a spherical object having a diameter of more than 100 mm (4 in) unless it can be shown that the location and size of openings which exceed this limit do not represent a hazard. (See A- and (2) in Appendix A.)

Article Design to Prevent Climbing

(1) Guards required by Article 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 (2ft 11 in) above the floor or walking surface protected by the guard will facilitate climbing.

  1. Applicant's Position

The Applicant submitted that the modified guard does not represent a hazardous situation and therefore complies with the intent of OBC and He argued that the existing lower portion of the guard is a valued historic feature of the building and achieving complete compliance with the disputed OBC standards would greatly diminish its historic integrity. He noted that the original guard offered protection to the occupants of the building when it was used as an assembly occupancy, specifically a Sunday school. Moreover, the Applicant indicated that the hazard has been reduced by the recent addition of the higher rail and support posts.

The Applicant indicated that the change of occupancy to residential does not represent an increased hazard over the previous use. He further argued that the existing lower portion of the guard should be considered an acceptable compliance alternative under Part 11 and be allowed to remain as is.

The Applicant indicated that the guard has existed to their knowledge without incident for over 100 years. He also stated that the recent purchasers of the two units would be upset if the guards were further modified.

Lastly, the Applicant submitted a letter indicating that the Cobourg Local Architectural Conservation Advisory Committee had recommended this project for a 1999 Ontario Historical Society award.

  1. Respondent's Position

The Respondent submitted that the modified guard does not achieve the level of safety required by the Code. He indicated that he was concerned about both the large size of the openings in the newer part of the guard and the climbable features of the historic portion of the guard. While he recognized the Applicant's effort to reduce the level of hazard by adding the horizontal rail with vertical posts, these measures are not sufficient to allay his concerns. For these reasons, the Respondent felt he could not accept the modified guard as constructed.

  1. Commission Ruling

It is the decision of the Building Code Commission that the modified guard as constructed with a total height of 915 mm over the existing guard provides sufficiency of compliance with Sentence and Article of the Building Code provided:

a) the clearance between existing guard and the 50 mm rail extension complies with the maximum size openings of 100 mm.

  1. Reasons

a) It is the opinion of the Building Code Commission that the safety issue can be addressed by the use of materials that will not adversely affect the architectural significance of the guard.

Dated at Toronto this 8th day in the month of April in the year 1999 for application number 1999-08

Mr. Roy Philippe, Chair

Mr. Michael Steele

Mr. Kenneth Peaker