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BCC Ruling No. 99-69-725

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AND IN THE MATTER OF Sentence of Regulation 403, as amended by O. Reg. 22/98, 102/98, 122/98, 152/99 and 278/99 (the "Ontario Building Code").

AND IN THE MATTER OF an application by John and Shirley Smith, property owners, Arthur, Ontario, for the resolution of a dispute with Mr. Ron Steffler, Chief Building Official, Township of Wellington North, Ontario, to determine whether the as constructed guard, consisting of numerous joined diagonal members, provides sufficiency of compliance with Sentence of the Ontario Building Code at 16 Andrew Street, Arthur, Ontario.


John and Shirley Smith
Property owners
Arthur, Ontario

Mr. Ron Steffler
Chief Building Official
Township of Wellington North

Mr. Kenneth Peaker (Chair-Designate)
Mr. James Lischkoff
Mr. John Guthrie

Toronto, Ontario

November 18, 1999

November 18, 1999

Mr. John Smith
Property owner
Arthur, Ontario
The Applicant

Mr. Bert Coffey
B. C. Construction
Arthur, Ontario
Agent for the Applicant


  1. The Applicant

Mr. John and Shirley Smith, Ontario, have received an order to comply under the Building Code Act, 1992, to remedy certain deficiencies concerning the guards at 16 Andrew Street, Arthur, Ontario.

  1. Description of Construction

The Applicant's have recently constructed a new, two storey, detached Group C - Residential structure with a building area of approximately 350 m2. Two separate decks with a total length of approximately 18.3 m have been constructed on the ground floor of the east and south sides of the house.

The construction in dispute involves the guards built around the perimeter of both decks. The wood guards consist of numerous joined members inclined at 45° supported at the sides, top and bottom by vertical and horizontal rails. The grade level beyond the deck in terms of vertical height varies from approximately 350 mm to 1100 mm as measured from the deck surfaces. While the areas where the grade level is 600 mm or less do not require a guard to be constructed on the deck, the Applicant's have chosen for aesthetic reasons to continue the same guard design for these areas as well.

  1. Dispute

The issue at dispute between the Applicant and Respondent is whether the as constructed guard, which includes numerous joined diagonal members, provides sufficiency of compliance with Sentence of the Ontario Building Code. This provision stipulates that a required guard be designed so that no member, attachment or opening located between 100 mm and 900 mm above the floor or walking surface, here the surface of the deck, will facilitate climbing. The rationale for this requirement is provided in the Appendix note for Sentence which states that:

"Guards are sometimes constructed with horizontal or near-horizontal members between balusters such that a ladder effect is achieved; this can be very tempting for young children to climb, thus exposing themselves to risk of falling over the guard..."

At issue therefore is whether the design of the as constructed guards facilitates climbing.

  1. Provisions of the Ontario Building Code

Sentence - 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 (2 ft 11 in) above the floor or walking surface protected by the guard will facilitate climbing.

  1. Applicant's Position

The Agent for the Applicant submitted that the as built guards do not pose a hazard and should be considered as being in compliance with the requirements of Sentence He noted that the vertical height of the deck above the adjacent grade level was relatively low, in fact, certain portions of the guards are not even required by Code since the vertical drop is less than 600 mm. As well, the surface of the adjacent grade is comprised of soft soil and grass. It is not concrete or some other hard surface. He also noted that there are no children living in the house that would be tempted into climbing the subject guards.

The Agent presented examples of other guards, some located in Ontario and some not. Among the examples of other guards found elsewhere in Ontario were ones at the Elora Gorge and at Niagara Falls. He argued these were far more dangerous and climbable than the one built at the Smith residence. The Agent also offered examples of guards very similar in design to those in dispute. He noted that these must have been approved by the relevant authority having jurisdiction, and that while some of these guards were located in the US and therefore subject to different building codes, at least one was found in Queenston, Ontario.

The Agent explained that the situation regarding the guards arose due to the following circumstances: Prior to constructing the decks the he took a prototype design of the proposed guards to the municipal building department for review. The officials there allowed that the proposed design would not be deemed to facilitate climbing if the interior (or deck side) of the guards were covered with plexiglass or some other type of screening. However, once constructed the Applicants decided that the guards do not pose a hazard and would be reduced aesthetically if a screening material were to be added.

In conclusion, the Agent stated that the owners of the house have run their own family insurance business for many years and are aware of the legal requirements that have been established for the safety of a household and its residents. Nevertheless, in their opinion, they do not believe the guards pose a safety risk to anyone.

  1. Respondent's Position

The Respondent choose not to attend the hearing. The Commission therefore relied upon his written submission only.

The Respondent submitted that the Applicant's as constructed guards, in his view, would facilitate climbing. As a result, he argued that Sentence of the Code has not been met. It was for this reason, he indicated, that an order to comply was issued.

The Respondent stated that he offered to take a four year old child to the house to ascertain whether the guard was climbable. The Applicant's declined, but in doing so conceded that the subject guards could be deemed as climbable.

  1. Commission Ruling

It is the decision of the Building Code Commission that the as constructed guard consisting of numerous joined diagonal members does not provide sufficiency of compliance with Sentence of the Ontario Building Code at 16 Andrew Street, Arthur, Ontario.

  1. Reasons

(i) No compensating measures to achieve sufficiency of compliance were provided.

Dated at Toronto this 18th day in the month of November in the year 1999 for application number 1999-71.


Mr. Kenneth Peaker, Chair-Designate


Mr. John Guthrie


Mr. James Lischkoff