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BCC Ruling No. 96-55-538

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BUILDING CODE COMMISSION DECISION ON B.C.C. #96-55-538

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

AND IN THE MATTER OF Section 9.5 and Sentence 9.33.1.3 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 a reference to the Building Code Commission pursuant to an order of the Honourable Justice Gordon Killeen of the Ontario Court (General Division), dated July 4, 1995 concerning whether Section 9.5. of the Building Code applies to; whether the requirements of 9.5. are met; and, whether the required heating provisions of Sentence 9.33.1.3.(1) have been met, at a house at 74 Maitland Street, London, Ontario.

APPLICANT

Mr. R. Cerminara
Chief Building Official
London, Ontario

RESPONDENT

Mr. David McGee
1103118 Ontario Ltd

PANEL

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

PLACE

Toronto, Ontario

DATE OF RULING

January 8th, 1997

APPEARANCES

Mr. R. Cerminara
Chief Building Official
City of London
For the Applicant

Mr. James P. Barber
Corporation Counsel
City of London
Agent for the Applicant

Mr. David McGee
1103118 Ontario Limited
For the Respondent

REPORT

  1. Order of Ontario Court (General Division)

Mr. David McGee (the "Respondent") was issued an order to comply under the Building Code Act, 1992 and applied to the Ontario Court (General Division) under s.25(1) of the Building Code Act, 1992 for a declaration that Section 9.5. of the Building Code does not apply to existing a house at 74 Maitland Street, London, Ontario. In that application, the Honourable Justice Gordon Killeen of the Ontario Court (General Division), on July 4, 1995 referred for a hearing and report on the following 3 questions:

i. "...the question raised by Mr. McGee about compliance with heating requirements..."

ii. whether "s. 9.5. of the Building Code apply to the house owned by 1103118 at 74 Maitland Street..."; and,

iii. "...if s. 9.5. does apply, then has 1103118 complied with its requirements such that a building permit should issue permitting the conversion of 74 Maitland Street to a duplex."

  1. Background

The City of London issued an order to comply on March 8, 1995 to Mr. David McGee for undertaking renovations of a house at 74 Maitland Street because the work meant that two bedrooms would have a lack of adequate heating facilities. The City also refused to issue a building permit for the conversion of the house into two separate units because the floor area requirements of Section 9.5. were not met.

Mr. McGee appealed these actions under s. 25(1)-(2) of the Building Code Act to the Ontario Court (General Division). On July 4, 1995 Justice Gordon Killeen referred certain questions respecting the interpretation of the technical requirements of the Building Code or the sufficiency of compliance with the technical requirements of the Building Code.

As the Applicant in the proceedings before Justice Gordon Killeen had not yet applied to the Building Code Commission, the Chief Building Official applied to the Commission on October 14, 1995.

  1. Description of Construction

The building which has been renovated is a one storey house which has been converted into a bachelor unit of 17.8 square metres at the front and a two bedroom unit at the back. The 2 two bedrooms in the rear unit have areas of 5.8 square metres and 6.1 square metres.

The original house was heated by a gas space heater, which has been replaced with a new gas fireplace and supplemented with baseboard heaters.

  1. Issue on Reference

The reference from the Ontario Court (General Division) directed that the Building Code Commission interpret the technical requirements of the Building Code or the sufficiency of compliance with the technical requirements of the Building Code that were raised in the application before the Ontario Court (General Division) pursuant to which the reference was ordered, and in particular to determine:

i. Have the heating requirements of s. 9.33.1.3.(1) been met?

ii. "Does s. 9.5. of the Building Code apply to the house owned by 1103118 at 74 Maitland Street ?

iii. If s. 9.5. does apply, then has 1103118 complied with its requirements such that a building permit should [be] issue[d] permitting the conversion of 74 Maitland Street to a duplex ?" and

  1. Provision of the Building Code

Clause 11.3.4.1.(1)(b) Reduction in Performance Level

The performance level of a building is reduced where proposed construction will result in...b) the conversion of a suite of a Group C major occupancy into more than one suite of a Group C major occupancy.

Sentence 11.3.4.1.(7)

Where proposed construction will result in a change of major occupancy described in Clauses 1 (a) to (d), additional construction shall be required in order that the building or part of the building subject to the change in major occupancy conforms to the requirements of...Sections 3.6, 3..11, 9.5 and 9.7...as they apply to the new major occupancy that the building or part of the building is to support.

Section 9.5. Compliance Alternative C88

Table 11.2.3.C

C88: "Except as provided in C88.1, the requirements under this Section do not apply"

C88.1: "In detached houses, semi-detached houses, townhouses and row houses containing not more than two dwelling units,

  1. minimum room height shall not be less than 1.95 m (6 ft 5 in) over the required floor area and in any location that would normally be used as a means of egress, or
  2. minimum room height shall not be less than 2.03 m (6 ft 8 in) over at least 50% of the required floor area, provided that any part of the floor having a clear height of less than 1.4 m (4 ft 7 in) shall not be considered in computing the required floor area.

  1. Applicant's Position

The Applicant submitted that by virtue of Number C88.1 of Table 11.2.3C, the floor area requirements of Section 9.5. are applicable to renovations under Part 11.

The Applicant further submitted that the two bedrooms off the living room and the bathroom at the rear were not equipped with heating facilities capable of maintaining an indoor air temperature of 220 C, that there is no evidence of any ductwork or central heating in the rooms, and that the gas fireplace serves only the room or space in which it is located and not other rooms.

  1. Respondent's Position

The Respondent submitted that the bedrooms in the rear unit were existing bedrooms that should not have to be altered to conform to Part 9 of the Building Code.

The Respondent further submitted that the house was originally heated with a gas space heater and that a new gas fireplace with some baseboard heaters should be more than adequate an improvement, and submitted 2 affidavits from tenants that the rooms were being maintained at a temperature above 220 C.

The Respondent further submitted an affidavit from a professional architect concurring with the applicant's position that the room dimensions and heating requirements meet the Building Code.

  1. Findings and Conclusions

It is the decision of the Building Code Commission that:

i. Section 9.5. of the Building Code does not apply to the renovation of the house owned by 1103118 at 74 Maitland Street.

ii. The question of heating system compliance is no longer applicable.

  1. Reasons:

i. Article 11.3.4.1. of the Building Code requires conformance to Section 9.5., however Sentence 11.2.3.1.(2) indicates that a compliance alternative to a requirement in Part 9 may be substituted. Compliance Alternative C88 indicates that the requirements of Section 9.5. do not apply except for the requirements of Article 9.5.2.1. which deal only with minimum ceiling heights as detailed in compliance alternative C88.1.

ii. Since the court's referral to the Commission the Respondent has installed baseboard heaters. Accordingly the parties have agreed that the Commission need not deal with this issue.

Dated at Toronto, this 8th day, in the month of January, in the year 1997, for application number 1996-69.

Michael Lio

Susan Friedrich

Demir Delen