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BCC Ruling No. 99-76-732

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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, 122/98, 152/99, 278/99, 593/99 and 597/99 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Mr. Mark Bodrug, Planner, The TDL Group Ltd., Oakville, Ontario for the resolution of a dispute with Mr. Gerry Gosselin, Supervisor, Healthy Environment Team, The Regional Municipality of Haldimand-Norfolk, to determine whether the type of occupancy, proposed as a drive through restaurant, is permitted to comply with Sentence of the Ontario Building Code for a Tim Hortons facility at 401 Simcoe Street, Highway No. 3, Norfolk, Region of Haldimand.


Mr. Mark Bodrug, Planner
The TDL Group Ltd.
Oakville, Ontario


Mr. Gerry Gosselin
Supervisor, Healthy Environmental Team
The Regional Municipality of Haldimand-Norfolk

Mr. Bryan Whitehead, Chair-Designate
Mr. Doug Robinson
Mr. Frank Wright

Toronto, Ontario

December 16th, 1999

December 16th, 1999


Mr. David Greenfield, President
D. Greenfield Associates Ltd.
Burlington, Ontario
Agent for the Applicant

Mr. Joe Gibbons, Manager for Environmental Health
The Regional Municipality of Haldimand-Norfolk
Simcoe, Ontario
Designate for the Respondent


1. The Applicant

Mr. Mark Bodrug, Planner, The TDL Group Ltd., Oakville, Ontario, has applied for a building permit under the Building Code Act, 1992, to construct a Tim Hortons drive-through and restaurant facility at 401 Simcoe Street, Highway No. 3, Norfolk, Region of Haldimand, Ontario.

2. Description of Construction

The Applicant is proposing to install a new aerobic Class 4 sewage system to serve a new, drive-through and 61 seat Group A, Division 2 - (food service operation) occupancy located on Highway No. 3. Consistent with the expanded range of food provided at their other outlets, the proposed Tim Hortons facility will offer (beyond the traditional coffee and doughnuts) sandwiches, soups, bagels, muffins, etc. When completed, the subject facility will contain 37.5 fixture units, a total finished floor of 281.5 m2 and a total daily design flow rate, as calculated by the Applicant, of 9,821 L/d.

The proposed sewage system consists of two septic tanks, a 10,000 L low profile tank to receive wastes directly from the kitchen and a 12,000 L tank which would serve the sanitary sewage from the building. Effluent would travel by gravity from the smaller through the larger tank and into a 1.8 m diameter pumping chamber equipped with a double pump system and a alarm float. From there the effluent would be sent to three 6,800 L NPS Aerobic CCA 10 secondary treatment units, each fitted with a pump. The secondary quality effluent would then be pumped to three leaching beds each comprised of eight runs of 27 metres for a total bed of 648 m. A 23,000 L surge, or balancing, tank is connected to the outlet end of the three NPS secondary treatment units and receives overflow from those units via gravity.

The site is described as having a variable topography, covered with grass and has a total area of 22,202 m2. The percolation rate of the native soil (fine sand), as determined from sampling, is approximately 12 minutes per centimetre and the soil has a depth of 16 m. (The clay fill present in one of the proposed leaching bed areas will be removed to the level of the native fine sand.) The highwater table is measured at 15 m below the surface. The site will be served by a new cased well.

The construction in dispute involves the proposed total daily design sanitary sewage flow for the subject structure as determined by its occupancy.

3. Dispute

There are two issues in dispute between the Applicant and Respondent. The primary issue is whether the type of occupancy, proposed as a drive through/sit down restaurant, conforms to an establishment listed in Table, or should be permitted to comply with Sentence of the Ontario Building Code. This provision allows the total daily design sanitary sewage flow to be calculated based on the highest metered flow of three similar establishments if the occupancy does not fit within the categories set out in Table This Table lists numerous "Food Service Operations" and their sewage volume per seat, etc. Doughnut Shops are listed as item "e" and are shown to have a daily flow of 400 L per seat. Using this figure times the number of seats (61) yields a flow of 24,400 L per day, far in excess of the Applicant's claim of 9,821 L per day. However, considering the expanded range of foods now proposed to be dispensed at this facility, the issue at hand is whether subject facility should still be considered a doughnut shop. If so, then due to the 10,000 L/d threshold in the OBC, the calculated daily flow of 24,400 L would mean that the proposed application is not regulated under the Code and therefore the municipality and the Commission would not have jurisdiction over the matter.

Assuming the Commission interprets the subject proposal as being something other than the categories listed under "Food Service Operation", including doughnut shop, as shown in Table, the secondary issue to be addressed is whether, through the use of balancing tanks, the flow of a sewage system may be calculated on the basis of the "average daily sanitary sewage flow for the week" as described in A- & (2), the Appendix note to Sentences and (2). (These Sentences deal with determining daily design flow.) The Appendix note, as shown below, indicates that flows may be balanced and that the system may be designed (not calculated) using a daily flow that is equal to an average daily flow based over a week. Sentence, on the other hand, stipulates that when calculating sewage flow the highest flow rates of other similar establishments must be used. At issue therefore, is whether in calculating the flow rate of a proposed sewage system the peak, or highest, daily flow rate must be used, or whether an average flow is acceptable. Again, based on the figures submitted, if the highest flow rate is the operable figure, the Tim Hortons facility would exceed the 10,000 L limit.

4. Provisions of the Ontario Building Code,(2) and (4) - Sewage System Design Flows

(1) For residential occupancies, the total daily design sanitary sewage flow shall be at least the value in Column 2 as determined from Table (See Appendix A.)

(2) For all other occupancies, the total daily design sanitary sewage flow shall be at least the value as determined from Table (See Appendix A.)

(4) Where an occupancy is not listed in Table, the highest of metered flow data from at least 3 similar establishments shall be acceptable for determining total daily design sanitary sewage flow.

A- & (2) Balancing Tanks

Where variable daily flows or peak flows occur, the flows to the sewage system may be balanced. The sewage system and any pump(s) that are installed to move the sanitary sewage, should be sized to accommodate a daily sanitary sewage flow at least equal to the average daily sanitary sewage flow for the week. Balancing tanks should be sized in accordance with good engineering practice to ensure that peak flows can be accommodated.

5. Applicant's Position

The Applicant submitted that the proposed Tim Hortons facility, with a calculated daily design flow of 9,821 L per day, complies with the technical requirements of the Ontario Building Code. On the issue of whether a Tim Hortons facility be considered as something other than a doughnut shop, he argued that over the last ten years their corporation has expanded the range of food that they dispense. He noted that only 18 percent of their sales now come from doughnuts. Ten years ago that figure was 75 percent. Aside from coffee, the rest of their sales now come from all the other foods on their menu, such as bagels, sandwiches and soups. In fact, the Applicant described their operation not as a doughnut shop but as a "quick service restaurant".

The Applicant also argued that how they operate their locations is different than it was in the past. For example, many of their outlets are equipped with drive through facilities, which accounts for approximately 40 to 60 percent of a typical store's business. As well, many of their locations, including the present application, are now open 24 hours. As a result, due to their expanded food service and the changed nature of their operation, the Applicant asserted that they no longer fit within the traditional concept of a doughnut shop as contain in the OBC. Consequently, he argued that it was appropriate for them to use Sentence, which permits them to use metered data from some of their other locations.

With respect to the issue of whether the highest metered flow must be used, the Applicant argued that the Appendix note A- & (2) appears to indicate that a sewage system can be built on the premise of a weekly average flow, if one installs a balancing tank. The Appendix note refers to the "sizing" of a sewage system, which infers the calculation of flows to determine capacity, he stated. He also argued that, in his view, the reason for the inclusion of the subject Appendix note in the OBC was because it recognized that with the use of water saving devices sewage flows can be reduced and therefore offered designers greater flexibility.

Based on this view, the Applicant then explained how he arrived at his figures for the sewage flow of the proposed building. He indicated that he examined ten other Tim Horton locations and chose six of them for a comparison. Of these, the average of the peak flows was 251 L/seat/day, however, based on the average extended over a weekly basis (as per the Appendix note) the calculated flow rate was 161 L/seat/day. Using this latter figure and considering the number of seats (61), he arrived at a design flow of 9,821 L. This, he argued, fell below the 10,000 L threshold and could therefore be reviewed under the OBC.

(The Applicant did not provide any data as to the similarity of the other locations to the proposed restaurant with respect to the traffic patterns or catchment areas.)

6. Respondent's Position

On the first issue, the Respondent submitted that, in his view, the subject facility is a doughnut shop and is therefore listed in Table of the OBC. As a result, the daily sewage flow for the building, based on 400 L per day times 61 seats, would be 24,400 L. This, he noted, would clearly take the proposal beyond the limit set out in the Code.

With respect to whether a weekly average can be used to determine sewage flow, he stated that Sentence clearly states that the highest of flows must be used. On this basis, even using the numbers put forward by the Applicant for peak flow (251 L) the proposal would also greatly exceed the 10,000 limit. He argued that the Applicant was using the average of the average to reach his flow figures. In his view, this is not the intent of the Code.

7. Commission Ruling

It is the decision of the Building Code Commission that the occupancy of the proposed

Tim Hortons restaurant with donuts and quick service food and a single drive through does not fully conform to the list of establishments in Table It is therefore appropriate to consider the calculation of the total daily design sanitary sewage flow under Sentence

On the basis of the water use data provided, it is the decision of the BCC that the highest metered flows on a per seat basis would result in a total daily design sanitary sewage flow in excess of 10,000 litres per day for the proposed building.

Under Clause (f) of Article (as amended by Ontario Regulation 278-99), this proposed system fails the definition of a sewage system. Accordingly, the approval of the system design is the responsibility of the Ministry of Environment.

8. Reasons

  1. The Applicant's proposed flow figures, which include an average of 161 litres per seat for six restaurants over a three year period, demonstrates a trend of annual flow increases.
  2. The proposed flow is less than the highest year average shown by the Applicant. Applying this average would result in a calculated flow in excess of 10,000 L.
  3. A number of metered flows (shown in three month periods) exceed 10,000 L per day for smaller restaurants.
  4. The Code does not permit the use of balancing tanks to reduce the total daily design sanitary sewage flow for the purposes of determining conformity to Article

Dated at Toronto this 16th day in the month of December in the year 1999 for application number 1999-83.


Mr. Bryan Whitehead, Chair-Designate


Mr. Doug Robinson


Mr. Frank Wright