Shock of the New

In 2006, the construction industry in Ontario was busy adjusting to the provisions of the new Building Code Statute Law Amendment Act which brought a whole new set of qualification and registration requirements for professionals designing buildings. There were also new regulated timeframes for the review of building plans, as well as numerous amendments to the Ontario Building Code.

As if these changes weren’t enough for engineers and designers to contend with, on January 1, 2007 the objective-based Ontario Building Code came into force. This edition of the code presents a totally new approach to code enforcement based on performance objectives. Its format and application are completely different to all previous editions.

The objective-based National Building Code of Canada and the National Fire Code of Canada have been used since late 2005. Gradually other provincial codes are coming on board, as is now the case in Ontario.

Although Ontario’s objective-based code has only been in force for a few months, we have gained some experience from the National Building Code of Canada to be able to see and consider some of the larger impacts that it could have.

Greater freedom for decision making

From a risk management point of view, the objective-based approach is potentially a higher risk environment than the prescriptive code environment. The higher risk of liability may arise in light of the greater freedom for decision-making and opportunity for discretion.

However, I do not believe the objective-based codes will increase the liability of building officials and consultants. Liability results from negligence, that is, a breach of standard of care. A mistake does not necessarily mean negligence, as long as reasonable precautions have been taken and procedures followed.

Equivalency provisions which also provided opportunity for discretion existed in the Ontario Building Code since 1993. The criterion for the acceptance of a proposed equivalency was that, in the opinion of the chief building official, it would provide the “level of performance” that would be achieved by conformance with the requirements of the building code. The chief building official formed his opinion in the absence of explicitly stated intent for most of the provisions in the Building Code. There was also no guidance on the existing level of performance provided by the prescriptive code requirements.

The process to evaluate alternative solutions under the objective-based code is very similar to that used under the equivalency provisions of the previous editions of the code. However, with the objective-based code, evaluations will be facilitated by the additional information provided, such as the intent and application statements, functional statements and objectives. It is also explicitly stated in Division A that an alternative solution is one of two permitted methods for code compliance, provided it meets the outlined criteria.

As long as a reasonable care is exercised in the preparation and acceptance of an alternative solution, with proper documentation, there should not be any increased liability.

If a municipality perceives too much risk in approving alternative solutions under the objective-based building code, the council, being responsible for the enforcement of the Building Code Act, could establish a policy. It could decide that it would only approve those alternative solutions that are proposed and certified by a qualified professional engineer or architect, which the chief building official will not further review. In the past, the courts have respected “policy” decisions made by municipalities in determining when and how to discharge their duties.

The main obstacle to the success of the objective-based codes is the mindset of the authorities having jurisdiction, who are charged with approving an alternative solution. Our experience during the initial 18 months of working with the objective-based National Building Code indicates that an attitude of “we have always done it this way” prevails. It will take some time to adjust to the new rules of the game.

Objective-based codes explained

The first purely performance or objective-based building regulations were the Codes of Hammurabi in Babylon in the third century B.C. Their basic objective was to safeguard life and property from the effects of fire and other hazards, a goal which has not changed throughout the centuries. If a building collapsed due to faulty construction, the builder was put to death. It was clear what to expect from a building but it didn’t tell much about how to accomplish it.

Prior to the 2006 edition, the Ontario Building Code was a mixture of prescriptive and performance requirements. For example, the requirement for “an exit door to swing on a vertical axis and be equipped with a self-closing device and a positive latching mechanism” is prescriptive. It tells you exactly what must be done to satisfy the code.

On the other hand, the requirement for an exit stair in a high building to be designed so that “during a period of 2 hours after the start of a fire, it must not contain more than 1% by volume of contaminated air from the fire floor, assuming an outdoor temperature equal to the January design temperature on a 2.5% probability basis,” is a performance requirement. It tells you what must be achieved to satisfy the code, not how to do it. Performance requirements are generally stated in a way that allows flexibility in the choice of solutions.

Put away the tape measures

The objective-based building codes that are now a reality for all buildings in provinces like Ontario and British Columbia, and for the buildings owned and leased by the federal government in any province, are not truly performance codes. They still retain the existing mixture of prescriptive and performance provisions. However, they tie each provision to at least one explicitly stated code objective.

Existing code provisions are included in the objective-based codes as “acceptable solutions.” Innovative approaches that differ from the prescribed acceptable solutions but provide at least an equivalent level of performance are also permitted as of right, as “alternative solutions.”

In the previous editions of the building code, most requirements prescribed the solution without explicitly stating the intent of the requirement. Regarding means of egress, for example, the intent is that when a fire occurs occupants must be able to evacuate the building before conditions become untenable. This intent was not explicitly expressed, but instead was prescribed in terms of dimensional requirements such as travel distances and exit widths.

When there was a dispute between building officials and design professionals about exiting from a floor area, out came the tape measure or scale and the discussion revolved around compliance with such dimensions.

With the objective-based building code, the discussion when proposing an alternative solution will not be about the location or width of doors and stairs, but whether people will be able to evacuate safely in the event of a fire, in accordance with the stated goals.

Alternative solutions are not a way to get out of building code provisions and they are not a second best way to comply. The objective-based building codes bring logic and flexibility to the buildings approval process. Designers do not require reasons such as construction difficulties or heritage status in order to use alternative solutions, unlike the compliance alternatives for existing buildings in Part 11 of the previous editions of the Ontario code.

Demir Delen, P.Eng. is a principal with Morrison Hershfield, consulting engineers of Toronto.