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BCC Ruling No. 99-63-719

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BUILDING CODE COMMISSION DECISION ON B.C.C. #99-63-719

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

AND IN THE MATTER OF Sentence 3.2.5.13.(1) of Regulation 61, as amended by O. Reg. 400/91, 158/93, 160/93, 383/94, 20/95 and 395/96 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Mr. Eli Swirsky, Brant Plains Holdings Inc., Toronto, Ontario for the resolution of a dispute with Mr. Daniel Mousseau, Chief Building Official, City of Burlington, Ontario to determine whether the 1.4 m exterior canopy, which has not been provided with sprinkler protection for the area beneath the canopy, provides sufficiency of compliance with Sentence 3.2.5.13.(1) of the Ontario Building Code at the Brant Plains Plaza, 1053 Brant Street, Burlington, Ontario.

APPLICANT

Mr. Eli Swirsky
Brant Plains Holdings Inc.
Toronto, Ontario

RESPONDENT

Mr. Daniel Mousseau
Chief Building Official
City of Burlington

PANEL

Mr. Kenneth Peaker (Chair-Designate)
Mr. Robert De Berardis
Mr. Fred Barkhouse

PLACE

Toronto, Ontario

DATE OF HEARING
October 21, 1999

DATE OF RULING
October 21, 1999

APPEARANCES

Mr. Randal Brown, President & Consulting Engineer
Randal Brown & Associates Ltd.
Toronto, Ontario
Agent for the Applicant

Mr. Joe Wintar
Manager, Plans Examination
City of Burlington
Designate for the Respondent


RULING

  1. The Applicant

Mr. Eli Swirsky, Brant Plains Holdings Inc., Toronto, Ontario has received an order to comply under the Building Code Act, 1992, to remedy certain deficiencies at the Brant Plains Plaza, 1053 Brant Street, Burlington, Ontario.

  1. Description of Construction

The Applicant has recently constructed an addition to a Group E - (retail plaza) mercantile occupancy. The completed building is described as an L-shaped structure one storey in building height, having a building area of 2,445.17 m2 and facing two streets for fire fighting access. The building is constructed of noncombustible construction and is equipped with a sprinkler system and a standpipe and hose system.

The construction in dispute involves the 1.4 m canopy projecting from the exterior wall. Specifically at issue is the absence of sprinkler protection from the underside of the canopy covering the area below. The canopy is constructed of metal framing members enclosed with sheathing consisting of exterior grade plywood which has been treated with a fire-retardant coating to provide a flame spread rating of 25 or less. The wall separating the canopy from the from the interior of the building provides a one hour fire separation, but from the interior only.

The building's sprinkler system was also not extended to the space within the canopy itself. This issue was resolved to the satisfaction of the municipality, however, through the application of the fire-retardant material. In their view, since this brought the flame spread rating to 25 or less, NFPA 13, in particular Clause 4-4.1.7.1., has been met. (This provision requires that all concealed spaces enclosed with any combustible construction must be sprinklered. Exceptions are provided to Clause 4-4.1.7.1. Of these, Exception No. 8 states that "when the exposed surfaces have a flame spread rating of 25 or less and the materials have been demonstrated not to propagate fire in the form in which they are installed in the space.")

The addition, including the canopy, was constructed under OBC Article 3.2.2.44., which permitted the structure to be of combustible construction if sprinklered.

  1. Dispute

The issue at dispute between the Applicant and Respondent is to determine whether the 1.4 m exterior canopy, which has not been provided with sprinkler protection in the area beneath the canopy, provides sufficiency of compliance with Sentence 3.2.5.13.(1) of the 1990 Ontario Building Code. This provision stipulated that a sprinkler system must meet the requirements of NFPA 13-91, "Installations of Sprinkler Systems". In turn NFPA 13, in particular Clause 4-4.1.7.6., specifically 4-4.1.7.6.1. and 4-4.1.7.6.2. respectively, require that sprinklers must be installed in canopies over areas where combustibles are stored and handled and that they must be installed in canopies that extend more than 1.2 m in width. The control over what is placed under a canopy is difficult. As well, the width of the Applicant's as constructed canopy is 1.4 m.

At issue therefore is whether limiting the storage and handling of combustible materials under the canopy is sufficient to compensate for the omission of sprinkler protection below the canopy.

  1. Provisions of the Ontario Building Code

Sentence 3.2.5.13.(1) - Automatic Sprinkler Systems

(1)Except as provided in Sentences (2) and (3), where a sprinkler system is required, it shall be designed, constructed, installed and tested in conformance with NFPA 13, "Installation of Sprinkler Systems". (See Appendix A.)

  1. Applicant's Position

The Applicant acknowledged at the outset that a literal reading of the various applicable Clauses in NFPA 13, as referenced by OBC Sentence 3.2.5.13.(1), for a canopy over 1.2 m in width would require sprinklers to be installed. He indicated, however, that the owners and tenants of the plaza have provided letters stating that they would restrict the storage, handling and vending of combustible material under the canopy and that these have been submitted to the municipality.

By way of compensating measures to achieve sufficiency of compliance, the Applicant argued that there would be no combustible materials under the canopy to contribute to the fuel load. He argued that the letters already provided would bind the owners from doing this. He also offered to post a sign under the canopy to remind tenants, owners and patrons of the plaza regarding the prohibition of combustible materials. Lastly, the Applicant indicated that he was willing to fire stop the canopy between the individual tenancies.

The Applicant concluded by stating that, in his opinion, the above measures would adequately compensate for the lack of sprinkler protection below the disputed canopy.

  1. Respondent's Position

The Respondent submitted that as per OBC Sentence 3.2.5.13.(1) sprinkler systems must be installed in accordance with and NFPA 13, in particular Clauses 4-4.1.7.6.1. and 4-4.1.7.6.2. These provisions, he argued, both require that sprinkler protection be provided below the as built 1.4 m wide combustible canopy.

The Respondent argued that sprinklering was required below the canopy for two reasons. The first is that although the Applicant has submitted letters agreeing not to display, store or sell combustible material under the canopy, experience has shown that such letters have proved ineffective in preventing such an occurrence. To support this argument, some enforcement files of the Fire Department were presented. He indicated that owners sometimes forget that they have agreed to such a limitation concerning the space underneath the canopy, whereas at other times accidental situations occur, such as a shipment or delivery which gets left under the canopy. Moreover, constant enforcement of the situation by the Fire Department is neither practical nor possible. The situation is even harder to control in multi-tenant facilities where the turnover of tenants is much higher.

The Respondent also argued that if sprinklers are installed to protect the area under the canopy both parties benefit because owners and tenants are free to use that space as they want and the municipality does not have to waste precious enforcement time fighting a losing battle. For these reasons, his position was that to achieve conformance with NFPA 13 Clause 4-4.1.7.6.1., sprinklers are necessary, but they are also practical.

The second reason is that NFPA 13, Clause 4-4.1.7.6.2., requires sprinklering under combustible canopies wider than 1.2 m. As the Respondent noted, the disputed canopy is 1.4 m in width.

  1. Commission Ruling

It is the decision of the Building Code Commission that the 1.4 m exterior canopy, which has not been provided with sprinkler protection in the area below the canopy, does not provides sufficiency of compliance with Sentence 3.2.5.13.(1) of the 1990 Ontario Building Code at the Brant Plains Plaza, 1053 Brant Street, Burlington, Ontario.

  1. Reasons

(1) Sufficiency of compliance was not provided and the canopy does not meet the Ontario Building Code.





Dated at Toronto this 21st day in the month of October in the year 1999 for application number 1999-63.



____________________________

Mr. Kenneth Peaker, Chair-Designate





_______________________

Mr. Fred Barkhouse





__________________________

Mr. Robert De Berardis