Ruling No. 03-14-912 Application No. 2003-05 BUILDING CODE COMMISSION IN THE MATTER OF Subsection 24(1) of the Building Code Act, S.O. 1992, c. 23, as amended. AND IN THE MATTER OF Clause 10.1.1.2.(1)(a) of Regulation 403, as amended by O. Reg. 22/98, 102/98, 122/98, 152/99, 278/99, 593/99, 597/99, 205/00 and 283/01 (the Ontario Building Code ). AND IN THE MATTER OF an application by Tariq Naseem, owner, for the resolution of a dispute with Mani Navabi, Chief Building Official, City of Vaughan, to determine whether the provisions of Clause 10.1.1.2.(1)(a) of the Ontario Building Code apply to the subject residential building located at 119 Queen Isabella Court, Vaughan, Ontario. APPLICANT RESPONDENT PANEL PLACE Tariq Naseem Owner Maple, Ontario Mani Navabi Chief Building Official City of Vaughan Tony Chow, Vice-Chair Fred Barkhouse Donald Pratt Toronto, Ontario DATE OF HEARING April 17, 2003 DATE OF RULING April 17, 2003 APPEARANCES Tariq Naseem Owner Maple, Ontario The Applicant Larry Ptashynski Manager of Inspection Services City of Vaughan Designate for the Respondent
-2- RULING 1. The Applicant Tariq Naseem, owner, has received an Order to Comply under the Building Code Act, S.O. 1992, c. 23, as amended, in respect to a perceived change in major occupancy at 119 Queen Isabella Court, Vaughan, Ontario. 2. Description of Construction The Applicant is the owner of a two storey, Group C detached dwelling having a gross floor area of 231 m 2. The structure is comprised of combustible construction. The issue at dispute involves whether this relatively new building has been converted from a single unit Group C residential occupancy to a multi-suite Group C occupancy building, contrary to approved plans. An Order to Comply has been issued by the municipality in respect to this perceived change in use. The Applicant denies that the building is being used by multiple tenants and maintains that no modifications have been made to the original building which was inspected and approved for occupancy by the City prior to occupancy. 3. Dispute The issue at dispute between the Applicant and Respondent is whether Clause 10.1.12.1.(a) of the Ontario Building Code (OBC) is applicable when considering the use of the subject residential building. Clause 10.1.1.2.(1)(a) notes that when the use of a building changes from a single suite of Group C major occupancy to more than one suite of Group C major occupancy, this shall be considered to be a change in major occupancy. As noted above, the parties dispute whether the subject building has been converted from a single suite to more than one suite of Group C major occupancy. 4. Provisions of the Ontario Building Code 10.1.1.2. Change in Major Occupancy (1) The following changes of use shall also be deemed to be a change in major occupancy for the purposes of this Part: (a) a suite of a Group C major occupancy is converted into more than one suite of Group C major occupancy. 5. Applicant s Position The Applicant explained that the issue in dispute is whether his house has been converted into two residential units. He noted that the City has no evidence of this conversion and claimed that no inspections of the property have been condoned nor conducted. He questioned how the municipality could make such a claim without evidence to substantiate their position. The Applicant
-3- submitted that he could provide evidence to prove that the house is only used as a single suite and that all individuals living within the dwelling are related. He submitted immigration papers to support this claim. The Applicant advised that he has made no alterations to the one year old house and noted that the City issued a permit for a single unit dwelling and the house remains as a single unit dwelling. The Applicant reiterated his claim that the City has no evidence to prove otherwise. He suggested that any inspections of the building would have to have been conducted from the exterior of the dwelling. The Applicant submitted that he has requested the inspection reports relied upon by the City and noted that he has become aware of a compliant from a neighbouring property owner that prompted the municipalities investigation. Apparently, he stated, there was some concern about the legality of a side door that was constructed. He noted, however, that the original plans provided for this side door and it was approved by the City. The Applicant contended that, to the best of this knowledge, there was no issue with respect to compliance with the Ontario Building Code. When questioned as to the number of residents living in the dwelling the Applicant advised that 8 to 10 adults may be present during the summer months but that some vacate the residence in winter. Again, in response to the Commission s inquiry concerning some discrepancies between what was built and the original approved plans, the Applicant stated that some alterations were made during the original construction but nothing has changes since the final inspection. In summation, the Applicant noted that there are no locks on the interior doors and that all residents of the dwelling are related. He reiterated that the house is used as a single suite and all evidence supports his claim that only one family lives in the subject building. 6. Respondent s Position The Designate for the Respondent submitted that a permit was issued for the subject dwelling in February 2002. He noted that the property was zoned for single family residential purposes and a permit was issued on this basis. He confirmed that at the time the plans were reviewed they met the requirements of the Ontario Building Code. The Designate submitted that the design of the building makes it very suitable for the first and second floors to be converted into individual suites. He noted that the second floor is a complete dwelling unit, containing a kitchen, bathrooms, living/dining room and bedrooms. The ground floor, he noted was proposed for use as a library, great room, 3 piece bath, future bar and laundry. He submitted that the future bar could be easily converted to a kitchen and that other rooms could be used as sleeping accommodations on this level. The Designate advised that a complaint had been received from a neighbour in this area. The Designate further noted that there are approximately 10 houses on this street which appear to accommodate a large number of occupants. He advised that the Fire Department and the Building Department conducted an inspection of these dwellings. Occupants permitted the inspectors to enter and a converted house was discovered. As a result, an Order to Comply was issued and sent by registered mail to the owner. He advised that the Order noted that a second kitchen had been installed on the first floor, in place of the proposed bar. It was the conclusion of the municipality that the dwelling had been converted into two suites. Further, the inspector discovered that there was a lockable door between the first and second floors. The position of the municipality, the Designate advised, was not to limit the number of persons
-4- living within the building but noted that it must remain as one dwelling unit. The municipality s concerns stem from the physical changes to the structure which has been converted into two suites. As such, the Order to Comply has stipulated that the noncomplying features be removed. This could be accomplished by removing the kitchen on the first floor and removing the lockable doors within the structure. Alternatively, he noted, the Applicant could apply for a change in use. This alternative, however, would also require an amendment to the municipal zoning by-law. In summation, the Designated noted the differences between the OBC considerations and zoning by-law considerations. He confirmed that the Order had been issued on the basis of the inspection which revealed a kitchen on the first floor and a lockable door between the units. 7. Commission Ruling It is the decision of the Building Code Commission that it does not have jurisdiction in this case to determine whether Clause 10.1.1.2(1)(a) of the Ontario Building Code applies to the subject residential building located at 119 Queen Isabella Court, Vaughan, Ontario. 8. Reasons i) It appears to the Building Code Commission that there is contradictory factual evidence presented between the Applicant and the Respondent. Specifically, it is not known whether the building, as occupied, contains one or two suites of residential occupancy. Until this information becomes available, it is unclear whether the parties have a dispute between them that pertains to the technical requirements of the Ontario Building Code. ii) iii) iv) Further, the Building Code Commission heard no evidence that the parties, at present, have a dispute with each other relating to the technical requirements of the Ontario Building Code once the material fact of whether the residence exists as a one or two unit building was resolved. The view of the Building Code Commission is that as it stands now the true nature of the dispute between the parties pertains to whether there was reasonable grounds to issue the Order to Comply, in light of the conflicting evidence regarding the status of the building. The mandate of the Building Code Commission is to hear disputes that involve the interpretation and/or sufficiency of compliance with the Ontario Building Code s technical requirements. It does not extend to matters of how municipalities should exercise their powers of enforcement found in the Building Code Act such as when, or when not to, issue an order.
Dated at Toronto this 17th day in the month of April in the year 2003 for application number 2003-05. -5- Tony Chow, Vice-Chair Fred Barkhouse Donald Pratt