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BCC Ruling No. 94-06-384

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BUILDING CODE COMMISSION DECISION ON B.C.C. #94-06-384

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

AND IN THE MATTER OF Articles 9.9.2.7. and 3.7.1.2. of Ontario Regulation 413/90 as amended by O.Regs. 400/91, 159/93 and 160/93 (the "Building Code").

AND IN THE MATTER OF an application by Mr. Gordon Mason, President, Masfal Construction Limited for the resolution of a dispute with Mr. Jeff Chalmers, Chief Building Official, City of Peterborough.

APPLICANT

  • Mr. Gordon Mason, President
    Masfal Construction Limited

RESPONDENT

  • Mr. Jeff Chalmers
    Chief Building Official
    City of Peterborough

PANEL

  • Sarah Maman, Chair
  • Demir Delen
  • Remus Tsang

PLACE Toronto, Ontario

APPEARANCES

  • Mr. Gordon Mason, President
    Masfal Construction Limited for applicant

  • Mr. Jeff Chalmers, Chief Building Official
    and Mr. Robert Waldron, Building Inspector,
    City of Peterborough for respondent

DATE OF RULING March 29th, 1994

RULING

1. The Applicant

The Applicant, Mr. Gordon Mason, is the holder of a permit issued under the Building Code Act, 1992 to renovate a building at 166 Brock Street and 441 George Street North, Peterborough, Ontario.

2. Description of Construction

The Applicant extensively renovated the interior of two existing 100 year old two storey buildings located at 166 Brock Street and 441 George Street North. The first storey of each building was used as a mercantile occupancy and the second storey for apartments. There was no proposed change of occupancy. The proposed construction falls under Part 9 of the Building Code.

3. Dispute

The dispute between the Applicant and Respondent concerns an interpretation of Section 3.7 Barrier-Free Design of the Building Code. During the process of extensively renovating the interior of the buildings the Applicant reconstructed the store fronts in one building and replaced the doors in the second and did not provide barrier free access to some units on the first storey.

4. Provision of the Building Code

Article 9.9.2.7. Barrier-Free Path of Travel

"(1) Except as provided in Sentence (3), every building shall be designed to provide for a barrier-free path of travel in conformance with Section 3.7.

(2) Where the barrier-free path of travel required in Sentence (1) is provided to any storey above the first storey, the requirements in Article 3.3.1.7. shall apply.

(3) The barrier-free path of travel described in Sentence (1) need not be provided for houses including semi-detached houses, duplexes, triplexes, town houses, row houses and boarding, or rooming houses with fewer than 8 boarders or roomers."

Article 3.7.1.2. Entrances

"(1) Except as required in Sentence (2), every building in Article 3.7.1.1. shall have at least one entrance intended for general use by the public or the occupants designed in conformance with Article 3.7.3.3. and opening to the outdoors at sidewalk level or to a ramp conforming to Article 3.7.3.4. leading to a sidewalk.

(2) Where a suite of Group A, D or E occupancy is contained on the first storey of a building or on a storey to which a barrier-free path of travel is provided, and is completely separated from the remainder of the building so that there is no access to the remainder of the building, such suite shall have at least one barrier-free entrance in conformance with Sentence (1)."

5. Applicant's Position

The applicant did not provide barrier free access in accordance with Section 3.7 of the Building Code for the following reasons:

  1. The stores did not have barrier free access prior to the renovation;

  1. The floors in the units where barrier free access was not provided were left in place as originally constructed and are not level with the sidewalk; and,

  1. The existing store fronts are directly against the sidewalk and offer no opportunity to facilitate barrier free access.

6. Chief Building Officials Position

The respondent stated that the existing exterior door\frame assembly and porch were removed and reconstructed at the rear entrance to 166 Brock Street. This was part of the major "gut renovation" project which required vacant possession of the building. The accessibility of this entrance was further reduced as a result of lowering the lot grade.

At 441 George Street North, the store fronts were completely reconstructed as part of another "gut renovation" project. The respondent stated that the door sill heights at entrances could have been coordinated with the City sidewalk reconstruction.

7. Commission Ruling:

In favour of the Applicant. It is the decision of the Building Code Commission that the units on the first storey of 166 Brock Street and 441 George Street North that have not been provided with barrier free access complies with the Building Code.

8. Reasons:

  1. In the case of 166 Brock Street only the doors were replaced, but the size of the openings and the door frames did not change. There was always an elevation difference between the finished ground and the floor level. As a result there was no substantial change to the exterior to require barrier free access.

  1. In the case of 441 George Street North, in order to provide barrier free access to the two mercantile units in question, not only would the store fronts need to be renovated, but the floor would have to be lowered; however, lowering of the floor was not part of the proposed construction.

Dated at Toronto this 29th day in the month of March in the year 1994 for application number 1994-05.