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BCC Ruling No. 96-53-536

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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. Peter Nobre, Director of Leasing, First London East Developments Inc., North York, Ontario, for the resolution of a dispute with Mr. R. Cerminara, Chief Building Official, City of London, concerning whether or not a change of occupancy from an office use to a fitness club use complied with the requirements of Article of the Ontario Building Code at Nautilus Fitness Club, Argyle Mall, 1925 Dundas Street East, London, Ontario.


Mr. Peter Nobre
Director of Leasing
First London East Developments Inc.
259 Yorkland Rd., Suite 300
North York, Ontario


Mr. R. Cerminara
Chief Building Official
City of London


Mr. Michael Lio, Chair
Ms. Susan Friedrich
Mr. Demir Delen


Toronto, Ontario


January 8th, 1997


Mr. Peter Nobre
Director of Leasing
First London
East Developments Inc.
North York, Ontario
The Applicant
Mr. David Syrett
Agent for the Applicant

Mr. R. Cerminara
Chief Building Official
City of London
For the Respondent
Mr. Gary Edwards
City of London
For the Respondent


  1. The Applicant

Mr. Peter Nobre, Director of Leasing, First London East Developments Inc., is a person who holds a permit under the Building Code Act, 1992 to renovate a former office space to create a fitness club at the Argyle Mall at 1925 Dundas Street East in London, Ontario.

  1. Description of Constrution

The subject building is a two storey fully sprinklered shopping centre with a building area footprint of 26,950 square metres. The second storey is 1,395 square metres which is made up of 1,210 square metres of leasable space and 185 square metres for building services. The former use of the second storey was office space and the new use is a fitness club. The existing floor assembly between the fitness club and the existing retail shops on the first floor is concrete filled metal deck supported by structural steel. An unrated lay-in ceiling tile is suspended from this deck. The building does not currently have a fire alarm and detection system.

  1. Dispute

The dispute between the Applicant and the Respondent concerns sufficiency of compliance with Sentence of the Ontario Building Code. At issue is whether a rated fire separation is required between the major occupancy of the mall and the fitness club on the second floor.

  1. Provision of the Building Code

Sentence Reduction in Performance Level

  1. Except as provided in Sentence (5), where a major occupancy of all or part of an existing building is changed to another major occupancy and the hazard index of the new major occupancy is greater than the construction index of the existing building, upgrading of early warning and evacuation systems and additional upgrading shall be required in conformance with Part 11 of the Building Code so that the construction index of the building is increased to at least equal the hazard index of the new major occupancy that the building is to support.

  1. Applicant's Position

The Application submitted that the work should qualify as a basic renovation because there is no change in major occupancy. The occupancy will not be an increase in hazard or occupant load. At the same time, the renovation will involve a improvement of the exit facilities, the building is fully sprinklered and the work is common industry practise. A Code complying fire alarm system will be installed for the whole building, and the applicant is willing to install smoke detectors on the retail stores under the fitness club as leases are renewed.

  1. Chief Building Official's Position

The Respondent submitted that under the proposed renovations to the buildings, it was discovered that no fire separation existed, and that the municipality has included all fitness clubs under A2 occupancies. The Respondent further submitted that the sprinklers should not be used to waive the need for fire separations and that at least a 1 hour fire separation should be applied to between the major occupancies.

  1. Commission Ruling:

It is the decision of the Building Code Commission that the change of occupancy provides sufficiency of compliance with Sentence of the Building Code provided:

i. a fire alarm system that complies with the Building Code is installed.

ii. additional fire detection is provided in the eight retail stores below the fitness club and,

iii. a fire separation providing a 1 hour fire resistance rating is installed between the first and second floors within 5 years.

  1. Reasons:

i. the provision of the fire alarm system substantially improves the performance level of the building.

ii. additional detection allows for early warning and evacuation in the event of a fire

iii. the applicant agreed to provide a rated fire separation at the ceiling of the main floor to be completed within 5 years. The rated separation enhances life safety and property protection of the fitness club occupancy.

iv. There is no increase in fire load and no increase in occupant load due to the change of occupancy.

Dated at Toronto, this 8th day, in the month of January, in the year 1997, for application number 1996-59.

Michael Lio

Susan Friedrich

Demir Delen