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BCC Ruling No. 97-47-589

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

AND IN THE MATTER OF Section 9.25 of "the Building Code" (Ontario Regulation 419/89 as amended by Ont. Reg. 183/88, 581/88, 11/89 and 115/89).

AND IN THE MATTER OF an application by Mr. Walter Alley, Homeowner, 9700 Menard Street, Windsor, Ontario, for the resolution of a dispute with Mr. Edward Link, Chief Administrative Officer, City of Windsor, Ontario, concerning whether a renovation enclosing an existing atrium space should comply with Section 9.25 of the Ontario Building Code at 9700 Menard Street, Windsor, Ontario.


Mr. Walter Alley
9700 Menard Street
Windsor, Ontario


Mr. Edward Link
Chief Building Official
City of Windsor


Mr. Roy Philippe (Chair)
Ms. Susan Friedrich
Mr. Cliff Youdale


Toronto and Windsor, Ontario


Wednesday, October 29th, 1997

APPEARANCES Mr. Walter Alley
9700 Menard Street
Windsor, Ontario
The Applicant

Mr. Pier De Simone
Building Inspector
City of Windsor
For the Respondent

Mr. Brian Foster
Building Inspector
City of Windsor
The Respondent


  1. The Applicant

Mr. Walter Alley, Homeowner, 9700 Menard Street, is an individual to whom a correction order was issued under the Building Code Act, 1992 to install vapour barrier and insulation in the walls and ceiling of a space formerly used as a external atrium at 9700 Menard Street, Windsor, Ontario.

  1. Description of Construction

The Applicant is the owner of a Group C - residential condominium unit at 9700 Menard Street, Windsor, Ontario that was constructed approximately 10 years ago. The condominium complex comprises several buildings, each containing a number of units. The Applicant's unit is one of six in his building. The total building areas of the subject unit and the larger building are 1,525 ft2 and 8,700 ft2 respectively. The unit and the building are one storey in building height and are constructed of combustible construction.

The Applicant's unit, when originally constructed, contained a rectangular open-air, non conditioned, atrium located roughly in the centre of the subject unit. The atrium space measures 90 ft2. It is accessed by two sliding glass doors at opposite ends of the atrium.

Concerned about an alleged leak in the basement at the site of the atrium, the Applicant applied for and received a building permit in July, 1996 to enclose the open space. Accordingly, the Applicant had a roof constructed over the atrium. The construction of the roof was 2 x 6 in. framing members at 18 in. on centre with 3/8 in. spruce sheathing on the roof. The roof was finished with new shingles, patched into the existing roof system. Three 21 x 46 in. velux skylights were also installed in the atrium roof. The construction did not include insulation and vapour barrier in the walls and ceiling. Heating and air conditioning facilities were also not provided in this previously non-conditioned space.

  1. Dispute

The dispute between the Applicant and Respondent is whether the recent construction to enclose the atrium should comply with Article and Sentence These provisions set out requirements for the location of insulation and minimum standards for thermal resistance for glazed areas. Both provisions provide standards that are concerned with the separation of heated (conditioned) and unheated (non-conditioned) space. Central to this issue is whether the newly enclosed atrium constitutes a conditioned space or not.

  1. Provisions of the Building Code

Thermal Insulation and Control of Condensation Location of Insulation

Insulation shall be provided between heated and unheated spaces and between heated spaces and the exterior, and around the perimeter of concrete slabs-on-ground. Minimum Thermal Resistance

(4) All glazing that separates heated space from unheated space shall have a thermal resistance of not less than 0.30m2.C/W (1.70 ft2.h.0F/Btu).

  1. Applicant's Position

The Applicant submitted that the construction to enclose the open-air atrium does not create a conditioned space. In their view, their permit application was simply for a roof to create an enclosed atrium. They note that it was never their intention to use this area as interior, conditioned space. As a result, no heating or air-conditioning facilities were applied for, nor provided to the enclosed space. The covered atrium, they contend, is closed and not in use in the winter.

Moreover, the roof construction was essential the Applicant argues due to the severe water leaking at the atrium area into the basement of his unit. the Applicant notes that the roof construction has stopped the leaks.

  1. Chief Building Official's Position

The Respondent submitted that by constructing a roof and enclosing the atrium, the area becomes a conditioned space and is therefore required to comply with Article and Sentence In their view, the enclosing of the atrium makes that space "open" to the dwelling. As a result, the provisions of Section 9.25 of the OBC should apply.

Specifically, the Respondent feels that the new atrium roof is now separating a heated space from a non-heated space and is thus required to provide sufficient thermal insulation to prevent moisture condensation, especially in the winter. In addition, they believe that the walls and ceiling of the enclosed atrium, which should be appropriately insulated, are required to have a vapour barrier to prevent the diffusion of water vapour from attic and roof spaces.

The Respondent is also contending that much of the work was carried out without the proper municipal building inspections.

  1. Commission Ruling

It is the decision of the Building Code Commission that the enclosure of an existing open court provides sufficiency of compliance with Section 9.25 of the Building Code provided the unheated space is ventilated in accordance with Article 9.32 of the Building Code.

  1. Reasons

i) The Building Code Commission considers the court to be an unconditioned space. The enclosed court (Atrium) is unheated, and the enclosing walls do comply with Section 9.25 for thermal design.

ii) Evidence provided by the owner indicated that the space would be used as an unconditioned space.

Dated at Toronto this 29th day in the month of October in the year 1997 for application number 1997-52.

Roy Philippe, Chair

Susan Friedrich

Cliff Youdale