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BCC Ruling No. 97-28-570

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

AND IN THE MATTER OF Article 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. Paolo Presutti, Director of Construction, Fortinos Supermarkets, 90 Glover Road, City of Hamilton, Ontario, for the resolution of a dispute with Mr. Mani Navabi, Chief Building Official, City of Vaughan, concerning whether the proposed retail supermarket addition should provide washroom facilities based on occupant load in accordance with Sentence of the Ontario Building Code (OBC) at Fortinos Supermarkets Ltd., 3900 Highway # 7, City of Vaughan (Woodbridge), Ontario.

Mr. Paolo Presutti
Director of Construction
Fortinos Supermarkets Ltd.
90 Glover Road
Hamilton, Ontario

Mr. Mani Navabi
Chief Building Official
City of Vaughan

Mr. Roy Philippe, Chair
Mr. Michael Lio
Mr. Michael Steele

Toronto, Ontario

Wednesday, July 9th, 1997

Mr. J. Bruce Rankin
Rankin Architects Inc.
Agent for the Applicant

Mr. Steve Penna
Technical Supervisor
City of Vaughan
For the Respondent


  1. The Applicant

Mr. Paolo Presutti, Director of Construction, Fortinos Supermarkets Ltd., is a person who has applied for a permit under the Building Code Act, 1992 to renovate an existing retail supermarket by constructing a sit down eating area in the building at Fortinos Woodbridge, 3900 Highway # 7, City of Vaughan, Ontario.

  1. Description of Construction

The existing Fortinos Woodbridge facility at the City of Vaughan is a one storey building approximately 67 865 ft2 which is made of noncombustible construction. The building is classified as having a Group E (Mercantile) major occupancy. Currently, the structure does not have a standpipe and hose system. It is equipped with a fire alarm and sprinkler system.

The applicant proposes to expand the existing sit down cafeteria area from 30 to 82 seats. At one point 57 seats were provided in this area but 27 were removed at the request of the municipality. The proposed renovation of this area would not only reinstate the 27 removed seats, but would add 25 new seats.

  1. Dispute

The issue under dispute between the Applicant and the Respondent is the number of water closets that must be provided within the renovated supermarket, including the expanded cafeteria area. Determinations of occupant load has a direct bearing on the minimum number of washrooms that must be provided. The Applicant has designed the subject supermarket based on the actual occupant load, which they estimate to be approximately 425 persons, including 82 in the cafeteria area. The municipality has based its calculations of the occupant load of this building on Article, which states that when calculating the number of persons for a mercantile occupancy, the figure to use is 3.7 m2 (39.8 ft2) per person. This has resulted in occupant load determination of 1 162 persons, 85 of which are allocated to the restaurant. The discrepancy between these calculations has resulted in a dispute regarding the number of water closets that should be provided in the building.

  1. Provisions of the Building Code Occupant Load Determination

(1) The occupant load of a floor area or part of a floor area, or of a building or part of a building not having a floor area, shall be based on

(a) the number of seats in assembly occupancies having fixed seats,

(b) 2 persons per sleeping room or sleeping area in a dwelling unit or suite, and

(c) the number of persons

(i) for which the area is designed, or

(ii) determined from Table 3.1.16.A. for occupancies other than those described in Clauses (a) and (b).

(2) Where a floor area or part thereof has been designed for an occupant load other than that determined from Table 3.1.16.A., a permanent sign indicating that occupant load shall be posted in a conspicuous location.

(3) For the purposes of this Article, mezzanines, tiers and balconies shall be regarded as part of the floor area.

(4) Where a room or group of rooms is intended for 2 or more occupancies at different times, the value to be used from Table 3.1.16.A. shall be the value which gives the greatest number of persons for the occupancies concerned.

(5) In dining, alcoholic beverage and cafeteria space, the maximum occupant load shall be designed by using an area per person of 0.6 m2 (6.5 ft2).

  1. Applicant's Position

The Applicant submitted that the occupant load for the proposed renovation of the Fortinos Woodbridge should be based on the actual number of people that can realistically use the supermarket. The retail portion of the store is 4 296 m2, which based on a Group E (mercantile) occupancy, using Table 3.1.16.A., results in an occupant load of 1 162 persons. As the Applicant notes, however, this calculation is based on the gross retail floor area and does not subtract space for display units and fixed shelving, which is entirely unusable in terms of occupant load. Even at their busiest time of the year, the Christmas holiday season, the Applicant estimates that roughly 375 to 400 shoppers is the maximum that the facility can accommodate. In fact, only 400 shopping carts are provided. The figure of 400 shoppers includes 57 persons seated in the cafeteria area. (This number was eventually reduced to 30 at the request of the City of Vaughan.)

The Applicant now wishes to reinstate the previously removed 27 cafeteria seats and to further increase the seating capacity of that area by 25, for a total of 82 people. This would raise the total retail area occupant load to 425 persons. It is this number that the Applicant wants to use as the basis for calculating how many water closets to provide. To do this, they are proposing, according to Sentence, to post a permanent sign indicating the specific occupant load of the retail floor area.

Stemming from this adjusted occupant load, the Applicant has calculated the water closet requirements as follows. For the public in a Group E occupancy with 343 persons, divided equally for men and women, Sentence indicates that 1 male and 2 female washrooms are required. (The issue of staff washrooms for the mercantile occupancy does not seem to be a matter of dispute since 6 are available on the mezzanine level.) As well, Sentence stipulates that the minimum number of water closets provided in a restaurant with an occupant load of 82 (41 females and 41 males) shall be 2 for each sex. The Applicant is proposing to provide a total of 7 water closets, 4 female and 3 male. On this basis, they believe that the ground floor is adequately served with water closets.

Finally, the Applicant is of the opinion that Clause allows them to consider the staff washrooms as part of those required, even though they are on a different floor, as long as they are made accessible to the public.

  1. Chief Building Official's Position

The Respondent submitted that the Fortinos Woodbridge, being considered a mercantile building under the OBC, has an occupant load of 1 162 persons. This includes 85 people in the cafeteria. It is their view that the water closets should be provided based on the higher occupant load. Their particular concern is the proposal to enlarge the cafeteria. In their opinion, the cafeteria should be installed with 6 washrooms, 3 for each sex. Sentence states that a cafeteria having more than 40 seats must have separate water closets for staff. This would increase the 2 washrooms per sex required under Sentence to 3 for each.

The 6 washrooms required in the cafeteria, they note, would be in addition to the washrooms required in the rest of the retail space. Furthermore, the municipality does not believe the staff washrooms can be counted as being part of those required because during a site inspection it was discovered that these washrooms were inaccessible due to locked doors separating the staff area on the mezzanine level.

  1. Commission Ruling

It is the decision of the Building Code Commission that the washroom facilities provide sufficiency of compliance with the requirements of the Building Code provided the washroom facilities on the mezzanine level are made accessible to the public and that permanent marking is provided on the lower level washrooms indicating additional washroom facilities are available on the mezzanine level and instructions on how they may be accessed.

  1. Reasons:

i) Increasing the seating capacity of the eating area of the supermarket to 85 increases the need for washroom facilities in the supermarket.

ii) Washroom facilities on the mezzanine level that are intended primarily for staff use, can be made available to the public.

iii) The signage may be used to direct accessibility to the mezzanine level washrooms.

Dated at Toronto this 9th day in the month of July in the year 1997 for application number 1997-28.

Roy Philippe, Chair

Michael Lio

Michael Steele