The 1.5 Suite Problem: Resolving The Ambiguity In Ontario’s Barrier-free Housing Requirement Is A Provincial Responsibility

Ontario's 2024 Building Code introduced an important accessibility enhancement by requiring that at least 15% of suites in newly constructed apartment buildings be designed with a barrier-free path of travel into key living spaces. While the policy objective is clear and commendable, one practical issue remains unresolved: how should the requirement be applied when the calculation results in a fractional suite?

For developers, builders, architects, planners, and municipalities, this is more than an academic exercise. On smaller apartment projects, the answer can materially affect design, construction costs, project viability, and the timing of building permit approvals.

The ambiguity

Article 3.8.2.1.(5) of the Ontario Building Code requires that, in a Group C apartment building, "not less than 15%" of residential suites be provided with a barrier-free path of travel into specified rooms and spaces.

The difficulty is not the percentage itself; it is the absence of any direction as to how that percentage is to be applied when the calculation produces a fraction.

For example, a seven-unit building results in a calculation of 1.05 barrier-free suites, an eight-unit building results in 1.2 suites, a nine-unit building results in 1.35 suites, and a ten-unit building results in exactly 1.5 suites. The Building Code does not state whether those results should be rounded up, rounded down, or rounded to the nearest whole number, but it does contemplate that in some instances, 0 barrier-free suites would be acceptable. It simply does not address the issue.

It is not up to municipalities to resolve the gap

In the absence of express legislative direction, municipalities may adopt internal administrative practices to promote consistency in the review of building permit applications. While such practices may facilitate efficient permit administration, they are not legislative requirements and cannot supplement or amend the Ontario Building Code.

This is because municipalities administer and enforce the Building Code; they do not legislate it. Under section 5 of the Municipal Act, 2001, municipal powers are exercised by council and by by-law. Those powers, however, are subject to provincial legislation. Section 14 further provides that a municipal by-law is without effect to the extent that it conflicts with a provincial Act or regulation. Accordingly, even if a municipality were to adopt a by-law requiring all fractional calculations under Article 3.8.2.1.(5) to be rounded up, that by-law could not resolve an ambiguity in a provincial regulation by adding a substantive requirement that the regulation itself does not contain.

The same principle applies to municipal administrative practices. Consistency in administration cannot substitute for legislative language. The Ministry's published technical materials describing the 2024 Ontario Building Code changes likewise do not prescribe a rounding methodology for Article 3.8.2.1.(5), leaving the regulation silent on how fractional calculations are to be resolved.

Ultimately, the question is not how municipalities prefer to administer the provision, but whether the Province has directed how the calculation is to be performed. At present, it has not. Only the Province can resolve the ambiguity through an amendment to the Ontario Building Code, a regulation under the Building Code Act, 1992, or formal interpretive guidance issued by the Ministry of Municipal Affairs and Housing.

What does the Building Code actually require?

The phrase "not less than 15%" establishes a minimum percentage of barrier-free suites. It does not establish a fixed ratio of one barrier-free suite for every specified number of dwelling units, nor does it prescribe a methodology for converting a fractional calculation into a whole number.

The Ontario Legislature has demonstrated that, where it intends to prescribe a mandatory rounding methodology, it does so expressly. Numerous Ontario statutes and regulations direct that calculations be "rounded up to the nearest whole number," "rounded down," or "rounded up to the nearest cent," depending on the legislative objective.¹

Article 3.8.2.1.(5) contains no comparable language. It simply requires that "not less than 15%" of residential suites be barrier-free, but stops short of explaining how a fractional calculation is to be applied in practice. In particular, it does not state whether a result such as 1.5 suites must be rounded up, rounded down, or otherwise converted into a whole number. This is reflected in the explanatory Appendix, where Table A-3.8.2.1.(5) identifies ranges of barrier-free suites for corresponding ranges of apartment units.

For example, the explanatory Appendix includes Table A-3.8.2.1.(5), which identifies a range of 0–1 barrier-free suites for apartment buildings containing 1 to 6 suites. If the Building Code required every fractional calculation to be rounded up in order to satisfy the "not less than 15%" requirement, the table would instead identify a minimum of one barrier-free suite throughout that range. It does not. Rather, the Appendix contemplates that both zero and one barrier-free suites may satisfy the accessibility requirement within that range, reinforcing that the Building Code does not prescribe a universal rounding methodology for converting fractional calculations into whole numbers.

Had the Legislature intended to require a mandatory rounding methodology, it could have said so expressly. The absence of a prescribed rounding methodology leaves the treatment of fractional calculations unresolved. The omission is significant because it leaves unanswered how fractional suites should be treated.

Why it matters

This is not simply a question of mathematics; it is a question of statutory interpretation and administrative authority.

Section 8(2) of the Building Code Act, 1992 provides that a Chief Building Official shall issue a building permit unless the proposed construction contravenes the Act, the Building Code, or another applicable law. Permit issuance is therefore mandatory where an application complies with applicable law.

The issue is not whether municipalities may administer the Building Code. They plainly do. The issue is whether they may resolve a statutory ambiguity by adopting a mandatory rounding methodology that the Ontario Building Code itself does not prescribe. If the regulation is silent, the legal question becomes whether an administrative interpretation can create a substantive compliance requirement that is not found in the text of the Building Code.

That distinction has important implications for developers and design professionals seeking certainty during the permitting process.

Looking ahead

The accessibility objectives underlying the 15% requirement are both important and necessary. The uncertainty arises not from the policy itself, but from the absence of legislative direction respecting how fractional calculations are to be treated.

Until that issue is clarified, differing interpretations among municipalities are likely to continue. Some building departments may conclude that any fractional result exceeding one must be rounded up to the next whole number in order to satisfy the "not less than 15%" requirement. Others may recognize that the absence of an express rounding provision leaves room for reasonable disagreement as to how the calculation should be applied.

For developers and their consultants, that uncertainty creates an opportunity to engage with municipal building officials on the proper interpretation of Article 3.8.2.1.(5). Where a proposed development results in a fractional calculation—particularly one at or near a threshold such as 1.5 barrier-free suites—applicants may have a legitimate basis to engage with municipal officials regarding the interpretation of the provision, the project's design constraints, and whether the proposed design complies with a reasonable interpretation of the Ontario Building Code.

Until the Province provides a definitive answer, the "1.5 suite problem" remains an unresolved question of statutory interpretation. Municipalities may develop administrative practices to promote consistency, but they cannot legislate where the Province has chosen not to. For developers and their consultants, that uncertainty presents both a challenge and an opportunity: a challenge because different municipalities may take different approaches, and an opportunity because, where the legislation is genuinely ambiguous, applicants have a legitimate basis to engage with building officials on the proper interpretation of the Code. Ultimately, however, only the Province can provide the certainty that both municipalities and the development industry require.

If you have any questions about a development, please contact the authors or a member of the Gowling WLG Municipal Law team.

Footnote

1. See: O. Reg. 552/20, O. Reg. 285/01

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